4.2 INTERNATIONAL LAw/lNTERNATIONAL HISTORY: SPECIFIC PROBLEMS, CONCEPTUAL FRAMES, INHABITED WORLDS

‘We can know everything except ourselves' (Stendhal).^[148]

Some dialogue across fields produces stasis. At interdisciplinary conferences and meetings it is not uncommon to experience a kind of need coming off the other discipline.

There is another interdisciplinary story to be told though. From the intel­lectual history and international relations side has come a serious engagement with international legal history that leaves behind, indeed seeks to disturb, some of the commonplaces of the interdisciplinary space to produce de­familiarising and unorthodox depictions of the field. Amidst all this promising work, the encounter with international history and with ‘method' has exposed again at least three special problems for international law: one related to the arrangement of time (or what Scott thinks of as the relations between temporality and history), a second concerning the relationship between anachronism and context in international legal history, and a third involving the idea of ‘greatness' (or, more specifically, ideas about individual greatness, great powers and great crises).^[150]

Arrangements of Time

Marc Bloch once remarked on the way in which historical periods always arrive neatly as ‘centuries'^[151] before he went on to condemn the tendency of synchronic histories to narrate ‘pell mell events whose only connection was that they happened around the same time'.^[152] International law has been prone to centurise its history.

This centurising reflex has tended to accompany, too, a historical method through which history is endowed with a purpose. From the perspective of contemporary international lawyers, the (centurised) nineteenth century has played a constitutive role in these sequential histories. It is the century that came before: before the modern, before the transformation, before institu­tions. In the standard narrative, it is embryonic; here are the inchoate, half­baked beginnings of everything we are now familiar with: tiny fragments of arbitration (Alabama Claims), the hesitant opening moves towards an inter­national humanitarian law (Brussels, St Petersburg), early signs of an institu­tionalist spirit (the Universal Postal Union).

A post-method sensibility, then, requires us to remember that we are remembering the nineteenth century and, sometimes, bringing into being the idea of it as a century. So, recent history has reminded us that though the nineteenth century is remembered as an era of ‘sovereignty' it was, in the first quarter of the century alone, a period in which sovereignty was revived as a reaction to Napoleonic expansion but then seriously compromised by an interventionist ethic arising out of the Holy Alliance's preoccupation with revolutionary constitutionalism.

Meanwhile, smoothly linear chronicles of history - perhaps even the relationship between time and history itself - have been disrupted and disar­ticulated in recent accounts.^[155] To take the nineteenth century again, it has been posited in anti-linear readings as a moment of discontinuity rather than the incomplete prelude to the modernisation and renovation of international law in the early twentieth century. The centrality of the colonial encounter in the nineteenth century has, of course, been emphasised by contemporary international lawyers (Tony Anghie, Liliana Obregon).^[156] Their scepticism about international law's roots in a sovereignty-founding moment at Westphalia (or Utrecht) or in a slow rise to civilisation through law, is as pronounced as that of Carl Schmitt or Wilhelm Grewe, and the dark impli­cations of nineteenth-century colonialism are present in Anghie and in Schmitt (though the darkness has to be read into the latter).^[157]

But the nineteenth century is an outlier, too, in the work of someone like Charles Alexandrowicz who, partly, refuses this line of progressive develop­ment in favour of what he calls a ‘historicized international law'^[158] in which the colonial period is an exception or gap in the universalisation of international law.^[159] Alexandrowicz's method is not dissimilar to that of Grewe and Schmitt, in one sense at least.

It would be wrong, though, to think of Alexandrowicz's method as entirely anti-progressive. For him, the commercial spirit (via Kant and Cobden) would, after all, inevitably prevail over systems of cultural superiority and sovereign exclusion. The method, then, is a form of positivism (he relies heavily on the voluntary compacts of legal persons) but the theory is anti- positivistic and teleological (these legal persons are not all sovereigns, positi­vism's nineteenth-century exclusions are repudiated and there is a strong commitment to the idea that ‘the principle of universality of nations was and is inherent in a law derived from reason and not based on human will alone').^[163] In a sense, then, and more generally, Alexandrowicz's elision of the nineteenth century might serve as a model for denaturalising or re- historicising the periodisations we have come to live and write amidst.

Anachronism

Alongside this desire for telos, a certain variety of international law has been conducted in an unselfconsciously anachronistic mode. The idea is to find antecedents and map them onto contemporary circumstance or to take ideas and reify them across centuries. Alongside this is a ‘mania' to find the origins of something or other.^[164] In this way, Pufendorfs ‘state system', reduced to a mere precursor, is read directly and seamlessly onto the UN Charter inter­sovereign order or nineteenth-century ‘society'.^[165] This is a compulsion in an area I work in - international war crimes law - where the field of history is configured as a galaxy of free-floating precedents. ‘The past is a foreign country and, look, they do things the same way there', whether it be banning poison tip arrows (rather like chemical weapons) or offering immunity to visiting diplomats (cue reference to The Iliad or Shakespeare) or deploring bad behaviour (surely an early incarnation of ‘crimes against humanity'). This hyper-anachronism is especially prevalent in judicial doctrine - law's histories as opposed to histories of law - where it becomes a search for ‘historical validation'.^[166] So, a post-war court at Nuremberg was happy to announce that ‘aggression' had been a crime since ‘time immemorial' (in the Ministries trial) while the District Court of Jerusalem, in 1961, styled Adolf Eichmann as a ‘latter-day pirate', as if he had merely plundered some merchant vessels on the high seas.^[167]

In international criminal law, as we shall see later, the search for origins, or ‘usable history', is part of an effort to establish the authority of a new and insecure legal project. In this way, categories like ‘aggression' or ‘piracy' move through time in an uncomplicated, acontextual manner that is surely red meat to a certain sort of historian of political thought on the lookout for facile homologies.

More recently, however, after method, international legal history has been obliged to defend (often robustly) its commitments to anachronism.^[169] And with this development has come an understanding that the debate over anachronism is partly a political struggle over the meaning of history and the requirements of the present, and perhaps not so much a ‘choice of method'. Thus, the typical response to the problem of anachronism - a turn to context - should itself be understood as a political choice or a series of Russian-doll political choices (which context?) embedded in the larger deci­sion to make ‘context' (with its pre-existing methodological biases, its scholarly tradition) important so that contextualism becomes both political decision and indeterminate method.^[170]

Meanwhile, the deployment of deliberately acontextual reasoning can also have a political potency, whether it involves taking the ‘war on terror', and its accompanying ensemble of governing practices, and assimilating them to, say, nineteenth-century imperialism,^[171] or showing how the Anglo-American

107 defection from the UN collective security system resembled the clash between papal authority and secular natural law, or pointing to resemblances across time between mandate and international administration, or noticing some parallels between the Moscow Show Trials and the work of the international tribunals. Though these comparisons might be methodologically suspect, the claim will be made that they do important heuristic or political work, which a fully contextualised (whatever that might entail) reading of the historical circumstance would blur or undercut.

Indeed, an influential form of international legal history thinks of appar­ently innocuous contemporary practices and doctrines as being implicated in imperial, or more overtly violent, logics and tendencies in the past. Thus, does every apparently progressive or neutral legal norm of the present have its avatar in some more facially political or exploitative norm in the past. A certain sort of history, then, is designed to offer a ‘paleo-ontological' (Baxi) examination of these norms. Concepts are wrenched from the past as part of a provocative political project.^[172] In the end it may be that, as Josef Engel puts it: ‘every historical judgement is an analogical judgement'.^[173] To be a lawyer is to spend one's day making analogical judgements. What historians might think of as ‘a lack of context' (the absence of culture, event, social surroundings), might simply be a different sort of context: a linguistic context, a textual context, a legal context.^[174]

Greatness

A context that international law has struggled with, and against, is the context of ‘greatness', whether manifest as a focus on individuals or on the concrete or material conditions of international diplomatic life. At least one methodological imperative inherited from other fields is a suspicion of history as a history of Great Men and their activities (Terry Eagleton calls this sort of work ‘philistine') or as a sequence of crises or as a mere effect of Great Power politics.

The ‘Second Epilogue' to War and Peace is an essay denouncing the historical method of the novel itself. At one point, Tolstoy remarks:

The theory of the transference of the collective will of the people to historical persons may perhaps explain much in the domain of jurisprudence and be essential for its purposes, but in its application to history, as soon as revolu­tions, conquests or civil wars occur - that is, as soon as history begins - that theory explains nothing.^[175]

The novel, of course, plays the chamber politics of Russian aristocratic life against the deeds and misdeeds of historically significant figures as well as fictional heroes and anti-heroes. One interpretation of War and Peace, then, is that the novel struggles against its author's theory of history. The centrality of great historical persons, for Tolstoy, is essential to the success of a piece of literature (the structural novel was to come later) and essential in ‘the domain of jurisprudence' but as history it explained nothing.

The discipline of international law has conducted a similar internal struggle with the concept of ‘greatness', as expressed through an attention to the ‘real' underlying forces of history, in its accounts of history and its chosen methods. There is a method of international legal history, for example, that will continu­ally refer back to a set of lightly interrogated facts or realities as the authentic or ultimate ground of international law or historical development.^[176] And this history is sometimes written in a dismissive tone: a jeremiad against the blindness or idiocy of those who would base their historical accounts on something other than the realities of history. There are contemporary mani­festations of this but the modern masters of this form of hegemonic determinism are two otherwise quite distinct (and distinctive), German scholars, Carl Schmitt and Wilhelm Grewe.^[177]

Grewe's method is macro-historical, periodising, pseudo-scientific and ‘realist' but at the same time concerned with the styles (of governorship, of scholarship) that gave each of his epochs their own spirit.^[178] Like almost everyone who has ever written histories of international law he seeks to bring theory and practice together (though it is clear here that practice will tend to

109 dictate the kinds of styles available to be deployed within different moments of international legal history). So, for Grewe, international legal history was, famously, catalogued as Spanish, French, British and US-Soviet epochs, in which the international law of the period was an expression of the dominant power's style of global leadership.^[179] Throughout Epochs there is an elevation of theory (the style of scholarship predominating at any one time) but also a preference for ‘facts' (the idea of a European sovereign state system or the balance of power or the institution of permanent diplomacy) over ‘theories' (of late-mediaeval universalism or papal authority).^[180] Accordingly, concrete polit­ical systems conditioned by the style of the dominant power were to be preferred over the ahistorical, autonomous, legalisms of contemporaries like Hans Kelsen (a section of Epochs is entitled ‘Legal orders corresponding to changes in the state system').

Grewe's sweeping macro-history at least permits (or doesn't prevent) Grewe from asking the sorts of questions that became the basis for a later historical turn.^[181] Indeed, there are commonalities between Grewe and later legal historians who want to think of international law as having been shaped or constituted in its encounter with colonialism or Great Power preference. And, of course, Grewe is an important figure for the purposes of this chapter because his history is attentive to styles (of hegemony). Grewe's ‘style' is both broader and narrower than the style I discuss here: it encompasses the politics, method and constitutional presuppositions of the dominant imperial powers, but not the deeper methodological questions about how histories get to be written, far less whether method exhausts the sorts of questions that could be asked about such historical writing. However, Grewe's emphasis on style nevertheless demands an attention to the ways in which international law is written (its presiding languages, national forms and so on) that is not always present in international legal history.

The centrality of the concrete, the imperial, and ‘the real' mark out Grewe and Carl Schmitt as contemporaries and co-sympathisers. Certainly, the Schmitt of Der Nomos, at least, is more gnostic than Grewe with his discussion of, say, the ‘katechon’ (or the etymologies of the ‘nomos’ itself).^[182] But along­side all of this is the obsessive quest for the ‘concrete’ grounds of political order.^[183] Here, again, as with Grewe, and the post-war American political realists, it is assumed that there exists an underlying order or set of relations or real social circumstance obscured by something less real (the legal order, or liberalism or parliamentary democracy or some aesthetic or ethical superstructure).^[184]

But what are we to make of this longing for ‘concreteness’? It appears repeatedly in Grewe’s work and Schmitt’s and, in the field in general, it represents a kind of methodological telos - one often detached from any preoccupation with greatness - in its various sociological (New Haven), statist (positivism) and naturalist (the quest for a secure, secular basis (‘conscience of mankind’)) variants. In Schmitt’s case, the concrete is everywhere. The ‘exception’ produces a moment of revelation in which ‘the power of real life breaks through the crust of a mechanism that has become torpid by repeti­tion’, the friend-enemy distinction clears away the normative or supervening or spiritual in order to fully illuminate and make plain the political and the real (little wonder that a de-theologised - maybe even de-politicised - version of Schmitt’s thinking became the basis of American Cold War realism).^[185] Meanwhile, The Nomos of the Earth is, itself, a story of physical appropri­ations of land, sea and air.^[186] This craving for the tangible, or the underlying, is of course a feature of the social sciences in general but for Schmitt and Grewe it is a style encrusted into method. The concrete relations are always somewhere (often out of reach) underpinning everything and to be juxtaposed to the abstractions of certain kinds of legalism, but their restatement as a series of synonyms sometimes feels more like theological yearning than social science.^[187]

These gestures to political reality are suspect, of course. For all the reasons given by White and Ankersmit, but also because, in the case of Grewe, the author himself, it seemed, could only bear so much reality.^[188] As others have pointed out, Epochs manages to offer a millennium-long political history of international law without saying very much at all about the war it was written in the midst of. So, while Grewe can sound like Ian Hunter or Quentin Skinner when he demands that we ‘acknowledge the concrete intellectual historical position of a Vitoria, a Gentili or a Grotius',^[189] he manages to avoid this sort of positioning when he celebrates the work of Schmitt.^[190] In both Schmitt and Grewe, there is a concrete context that remains enigmatically out of sight, and this is also the shadow of a predicament hanging over the chosen method. Grewe, for example, retained his chair in international law through­out Hitler's reign. This leads to some peculiar historical ellipses beginning with Frowein's biographical account of Grewe, which reads as if Grewe began his academic career in 1945.^[191]

This chapter is partly an exercise in understanding history as a matter of taste or aesthetics, and I have written elsewhere about the way in which the acknowledgements in a work of scholarship might work against the ideas being expounded in the text itself.⁶² In Grewe's case we have a lapse of taste that makes him think it is important to register that the publication and writing of Epochs were each impeded by ‘air raids' or that it might be a matter of self­satisfaction that he had resisted the efforts of the authorities in the post-war era to modify his work.⁶³

Grewe and Schmitt had an ambiguous (perhaps not so ambiguous in Schmitt's case) relationship to Hitler and his policies. In a great many popular accounts of the past, of course, such men make history and are, themselves, consequently made by a particular historical method (as Marx alleged Victor Hugo does to Bonaparte in Napoleon le Petit)⁶⁴ But a typical disciplinary training in international law will tend to lack many references to leading statespersons (these characters are perpetually offstage, lending their names to the occasional doctrine (Truman, Brezhnev, Monroe) or providing the odd moment of context (Stalin, Nehru et al.)). On the other hand, in 1919, when a committee was established at the Versailles Peace Conference to consider the question of war crimes trials for the defeated German elite (including the Kaiser), the then-revolutionary idea was to make greatness the very subject of international criminal adjudication.

Labouring under a curious but revealing title, ‘The Commission on the Responsibilities of the Authors of the War', the Commission's deliberations turned out to be stormier than anyone had anticipated. In effect, the Commission enacted a series of debates around opposing views of history, wrestling from the outset with the title it had been given (and the first of its tasks) and the whole idea of ‘authorship'. In what sense is history or war authored? And who authors it? Or is ‘authorship' the wrong metaphor?

The Commission eventually held that wars were not authored by Great Men (at least not in a way that would give rise to individual criminal

Bardo Fassbender, ‘Stories of War and Peace. On Writing the History of International Law in the “Third Reich” and After', European Journal of International Law 13 (2002), 479-512, esp. 503-6.

⁶² Simpson, ‘The Sentimental Life of International Law'.

⁶³ In the preface to the second edition (1984), Grewe says of post-war censorship: ‘it was stipulated that a publication was now only possible under certain conditions which I was not prepared to accept. It had already been a remarkable accomplishment to avoid any alteration to the text by the censor during the Third Reich.': Grewe, Epochs, xi (emphasis added).

⁶⁴ Karl Marx, The 18th Brumaire of Louis Bonaparte (New York: International Publishers, 1969 [1852]), 8.

responsibility). And this accords with an international law that will emphasise, as the motors of international diplomacy, the slow accretion of norms, or the intensification of a certain form of practice or the steady construction of institutions rather than the inclinations of statespersons. Since the field under­stands itself to be a practice of taming the instincts of Great Powers or the pathologies of Great Men, it makes sense to underplay these figures in its own history.

But international law can be understood also as the enactment of a Tolstoyan struggle between the institutional and diplomatic structure of inter­national political life and the agency of great men. This latter tendency is reflected, first, in an intellectual history, or ‘the study of past thoughts' (in Skinner's elegant formula), of an international law consisting in what great men thought at different times.^[192] This is the history of international law from Gentili to Wolff and Vattel and then on to Oppenheim or Kelsen and beyond.^[193] This tendency, in turn, has been buttressed and complicated by the increasing attention given to the biographies of international legal practi­tioners as part of a general biographical turn in the field.^{[194] [195]} Alongside all of this, we would have to register the histories written and authorised by inter­national tribunals, which think of war and atrocity as an emanation from the evil minds of elite state and military leaders possessing ‘individual responsi­bility' and ‘criminal intent': international legal history via Milosevic, Pinochet and Goering.

Meanwhile, war crimes tribunals also write the history of international law as a line of great, defining crises from Nuremberg to the former Yugoslavia and the Rwandan genocide. This could be understood as both a departure from, and a confirmation of, existing tendencies in international law's histor­ical methodologies. On one hand, international lawyers go to the past in search of regularity, pattern and uniformity (a sequence of treaties, a practice ‘consistent and universal'). But another way of writing international legal history will precisely think of it as a response to crisis (‘Kosovo', ‘Rwanda', ‘Libya') or a history of post-war settlements (1648, 1713, 1815, 1919, 1945). And indeed, whole legal methods have been built round this sort of thing.^[196] Hilary Charlesworth and others have criticised this over-attention to crises and the deforming effects this has had on international legal culture, and that seems right. On the other hand, a certain sort of revolutionary moment - whether blueprint or singularity - might be understood as having transformed the ground on which judgement itself is made.^[197]

In this section, then, and to recapitulate before coming to a conclusion, I have tried to re-describe international law's preoccupations with time, telos and greatness as a way of suggesting that the historical field could be disrupted and its dominant tendencies denaturalised. What, then, might come after method?