INTERNATIONAL LEGAL CONTEXT-MAKING: DOING THINGS WITH TIME

It is easy to see why scholars would focus on international law's ideas about its history: the field's general program and the authority of international lawyers are often directly linked to the helping hand of history.

shares our tradition; who is at our stage of development? Routine law reform work establishes and reinforces this context of affinity and difference among the ruling elite. When law reformers in Chile reach out for best practices to emulate, they might look ‘naturally’ to France - or the United States - rather than Peru or Brazil. See David Kennedy ‘The Methods and the Politics’, in Pierre Legrand and Roderick Munday (eds.), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, 2003), 345-433. reinforce international law's ancient and universal provenance and present it as a first primitive step towards a more comprehensive global legal order. In the shadow of conventional histories, one might reasonably conclude that we need not rethink international law but must rather tend it carefully. With a new history might come a new appetite for rethinking.

International lawyers are adept at tracing long pedigrees for rules they favor and undermining the provenance of others. They style their pet projects as the crest of history's progressive wave and castigate their opponents for being out of time, either anachronistic or insufficiently respectful of precedent. They present their activities as permanent or transitional when doing so seems likely to enhance their acceptance. Does the machinery of transitional justice close the door on the past or prolong and repeat past injury, even render it permanent? Policy debates can turn on perceptions of continuity and rupture. Did the UN Charter - or decolonization or 1989 or 9/11 - usher in a new era for international law or reaffirm the wisdom of its long-term commitments? Placing contemporary projects in historical time can legitimate them as wise traditions prefiguring a better future or undermine them as unrealistic or stale anachronism.

Every lawyer knows that legal arrangements can speed or slow time, defer­ring or leapfrogging next steps. For all its strategic malleability, legal time can seem like time itself. Becoming a state seems a natural historical process that takes time, just as an occupation can be understood to be ‘transitional' however long it might last. People come to believe in a future prefigured by the virtues of today's institutions, just as they accept a past landmarked by the moments of wisdom embedded in contemporary norms. What seems historic­ally settled helps to define the terrain for possible change. Globally, it seems settled that the poor must make do within the borders and political possibil­ities of their territorial ‘nation' while non-refoulement for refugees and the free movement of goods and services are the sorts of thing one must struggle to achieve. The global legal immobility of the poor is a matter of historical fact: there is and can be no right to asylum.

Within this frame, people invoke different memories as they struggle over priorities, differences which may also render the field's overall historical narrative vulnerable to retelling. Where diplomats look back on wars and tell stories about the balance of power or spheres of influence, jurists remember peace treaties, great men and their books. Different legal fields trace their origins differently: for public international law, the big dates are 1648, 1918, 1945 and 1989; for international institutions, nineteenth-century precursors and then 1918 and 1945; for human rights, 1945 and 1989; for international relations, 1815, perhaps 1848 and 1871, and then 1914 rather than 1918 and 1945.

Placing particular doctrines or institutions in the long sweep of inter­national law's progressive development can shape what we expect of them. Are international organizations in their infancy, requiring our careful protec­tion and fealty? Their adolescence, prefiguring a better global governance to come if we are mindful of their missteps and reform their annoying impulses? Or are they long past their sell-by date, sorry reminders of good ideas which failed to pan out? We may disagree about the maturity of current international organizations, but we know the direction of progress. By naming a historical period, people indicate what they feel should be done. With ‘globalization' we must become more cosmopolitan; under ‘finance capitalism' we must break up the big banks. The ‘Anthropocene' reminds us to be careful. Changing the pace can also change the focus: if things are speeding up, we should feel pressed to act urgently. Environmental lawyers are not the only ones to forecast catastrophe or frame these as end times. The metric of ‘sustainability' brings that forecast back into the present as a program of caution.

When history seems to ratify distributions of authority, wealth and privilege with which people disagree, they have a motive to change the narrative. Two strategies beckon: adjust the story to accommodate your preferred outcome, or challenge the larger narrative. Colonialism provides the most obvious example.

3.2