INTERNATIONAL LEGAL HISTORY: A TALE OF TWO STYLES

To understand international law's contextual historians strategically, we might begin by placing them within and against the historical traditions of the field. Two or more centuries ago, European international jurists imagined their history animated by natural law - a kind of ethical unfolding, whose continu­ities expressed the good and true.^[114] There were lots of ideas about what that meant, of course, but a loosely shared picture of what history was for.

Over the last century, as international law has come to be understood both as the expression of humanist wisdom and as a tool for practical management, two quite different approaches to the field's history have developed.^[116] The field seems both to have inherited and to have overcome each historical tradition.

Because this vague or agnostic sense for law's roots is what makes it useful for problem-solving, thinking too much about historical origins might mess things up. Treading lightly helps both to reinforce international law's norma­tive authority and excuse the shortcomings of its projects. If human rights norms, for example, express both universal ethics and universal consent, any attention to their historical roots in this or that culture and political initiative can only be de-legitimating. At the same time, the claim to express a universal ethics is buttressed by a historical sense for international law's progressive teleology; a weak force bending the world slowly toward justice. As a result, mainstream international law likes its history lite and people using inter­national law for practical purposes have only a loose sense for its history. Contemporary textbooks typically begin with a 1648 rupture from a world of empire, war and religion into a two-century meditation on the nature of law among sovereigns, punctuated by a lineage of ‘naturalist' and ‘positivist' jurists before a turn in the twentieth century to modern institutions, courts and doctrines.^[117] One finds few mainstream works assessing the ‘contribution' of a past jurist to international law's accumulated wisdom or rooting contemporary doctrines in political and cultural history.^[118]

On the other hand, work challenging international law's authority and usefulness has turned ever more avidly to history, both by placing key jurists in the context of the messy local circumstances in which they wrote and by revisiting international law's links with darker historical episodes like colonialism or fascism.

The imbalance between express and implied historical styles can make contextual histories seem preoccupied with the dark sides. Vitoria may have been a universal humanist, but he turned those ideas to justify the occupation and murder of America's indigenous peoples. The League was not only a failed experiment in collective security, but the continuation of colonialism by other means, inventing practices of statistical oversight to facilitate the transi­tion from colonial to post-colonial control. The International Criminal Court is not only the culmination of historic efforts to render individuals responsible, and the precursor for a global system of criminal justice, but a novel way to continue the interventions of the North Atlantic in the affairs of Africa.^[121] Antony Anghie, the most well-known of recent contextual historians, traces a dark continuity across three hundred years: in each period, using completely different intellectual, institutional and doctrinal resources, Europeans man­aged to consolidate relations of inequality with the peoples of the South.^[122]

In this spirit, people have turned to history for large-scale course corrections in the field's contemporary self-image.

One can do international law better or worse, but the criteria of excellence have been set by Europeans: Cicero and Roman law, Catholic intellectuals, Vitoria in the sixteenth or Louis le Fur in the twentieth century, protestant activists, Hugo de Groot in the seventeenth, or Johann Caspar Bluntschli in

the nineteenth century... None of these men thought of Europe in merely local terms, but generalized it into a representative of the universal. The principle of generalization may have changed: Roman civilization (and law), Christianity, the ‘humanity' of the Enlightenment, science and capitalism in the nineteenth, modernity in the twentieth and globalization in the twenty- first century. It is hard to tell these ideas apart. They all claim the status of an Esperanto, transcending the time and place in which they are spoken.²²

Where the conventional view had left defenders of international norms - particularly human rights norms - to unearth parallel normative develop­ments in other cultures, revisionist historians have castigated the field for participating in the universalization of so particular a vision and insisted that other voices pursuing other agendas were available, sometimes playing a role, more often being ignored or rejected.²³

²² Martti Koskenniemi, ‘International Law in Europe: Between Traditional and Renewal', European Journal of International Law 16 (2015), 113-24, at 114. Discussing his earlier work, he notes: ‘In the Gentle Civilizer, I tried to give close “anthropological” attention to the contexts in which international law emerged as a cultural sensibility among a class of late-igth century European liberal and Protestant professionals. Instead of depicting it as part of some universal metaphysic I described international law as a platform or a vocabulary for the political project of a small group of activist lawyers, hoping to make it appear as a narrow — indeed “exotic” — aspect of fin de siecle European culture.

For a seminal attempt at ‘provincializing' Europe from its status as the singular and unavoidable context for historical knowledge, see Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton: Princeton University Press, 2000), 16. The attempt to provincialize the European narrative in international law has been used for emancipatory claims from the South: see, e.g., B.S. Chimni, ‘Asian Civilizations and International Law: Some Reflections', Asian Journal of International Law 1 (2011), 39-42 (recognizing the distinct contribution of Asian states to the evolution and growth of international law doctrines and practices); Arnulf Becker Lorca, ‘Alejandro Alvarez Situated', 883 (arguing that Alvarez, a Latin American lawyer and intellectual, was central to the global history of international law, having participated in developing the discipline's modern constellation of concepts, institutions, and practices while remaining embedded in the intellectual and political struggles of his native Chile and of Latin American states within the international system). For an anthology of anti-Eurocentric historical work, see Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012). For a critical review, see Anne-Charlotte Martineau, ‘Overcoming Eurocentrism? Global History and the Oxford Handbook of the History of International Law', European Journal of International Law 25 (2014), 329-36.

²³ See, e.g., Chimni, ‘Asian Civilizations and International Law', 41-2 (‘For instance, R.P. Anand has pointed out that in formulating his thesis on the freedom of the seas, Grotius was “aware of

Moreover, if you think international law manages or governs relations among equal sovereign states..., nope, it's about reinforcing unequal rela­tions among regions, nations and cultures.²⁴ Nor is international law best understood as ‘public', innocent of economics or above national cultural and family traditions. The laws of families, of markets and of sovereigns developed in parallel, everywhere entangled with one another.²⁵ If you

the long tradition of freedom of navigation in the Indian Ocean” and got a “helpful cue from the Asian state practice of freedom of commerce and trade between various countries and peoples without any let or hindrance”. Indeed, according to Anand, freedom of the seas “is one principle which Europe acquired from Asia through Grotius.”' Chimni concludes: ‘The areas in which Asian states have historically made a substantial contribution to the development of international law include the law of the sea, international humanitarian law, and international environmental law. These have been amply recorded in the writings of both Asian and Western scholars.').

²⁴ See, e.g., Obiora Chinedu Okafor, ‘Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective', Osgoode Hall Law Journal 43 (2005), 171-91, at 176-7 (arguing that TWAIL (Third World Approaches to International Law) scholars ‘are solidly united by a shared ethical commitment to the intellectual and practical struggle to expose, reform, or even retrench those features of the intellectual legal system that help create or maintain the generally unequal, unfair, or unjust global order'); Anghie, ‘Colonialism and the Birth of International Institutions' (arguing that international law created two models of sovereignty for Europeans and non-Europeans, placing them in an unavoidable hierarchy, and that post-war international institutions reproduce these inequalities); Chimni, ‘The Past, Present and Future of International Law', 511-12 (arguing that coming to terms with ‘the dark past of international law' will mean that ‘[i]nternational law's role in legitimising and sustaining colonialism and non-territorial imperialism will come to be recognised. The story of resistance to colonial and neo-colonial international law will become an integral part of the story of international law.... The project of emancipation will then find a home in the new history of global law.'); and Chimni, ‘International Institutions Today', 6-24 (arguing that ‘imperial' relations of inequality continue to characterize contemporary intergovernmental organizations, causing a loss of autonomy and the displacement of sovereign economic decision-making authority for third world states while promoting transnational capital). The argument crediting international law with colonial violence has its opponents. See, e.g., Ian Hunter, ‘The Figure of Man and the Territorialisation of Justice in “Enlightenment” Natural Law: Pufendorf and Vattel' (2013) 23 Intellectual History Review 289-307.

²⁵ See Martti Koskenniemi, ‘Empire and International Law: The Real Spanish Contribution', University of Toronto Law Journal 61 (2011) 1-36, at 11-12 (‘I would like to suggest that the principal Spanish contribution is not in those express arguments but in the development of a whole vocabulary that has since come to delineate the imperial dimensions of international law. At the heart of this vocabulary stand three notions already familiar from Roman law and medieval Christianity - dominium, ius gentium, and the bellum iustum... the most important Spanish contribution to the practice of empire lies in the recovery of those three notions and in giving them a meaning through which it was possible to react not only to the duda Indiana - the concerns of conscience raised by the Spanish activities in the Indies - but to three further transformations that took place in the period: the formation of centralized political communities - states - that demanded absolute loyalty from their citizens; the emergence of a global economic system based on private ownership and the search for profit; and continuous warfare, not only against the infidel, but among Christian rulers themselves.'); Matthew thought economic and gender justice were someone else's problems, you were wrong. And it's not secular either: its roots lie and continue to grow from Christian religious political projects.²⁶ Religion did not go away with the turn to positivism; protestant theology informed European cosmopolitanism, missionary work accompanied the legal imagination of the colonial encoun­ter, and religious ideas and actors were central to the twentieth-century origins of ‘human rights'.²⁷ The claim that 1648 inaugurated a secular settlement among sovereigns should itself be placed in the context of its most emphatic assertion: the post-1945 Cold War insistence that international law can be outside and above ‘ideology'.²⁸

Revisionist histories like these would seem to open the door for careful assessment of the distributive consequences of ideas about context. What real world difference does it make for these people to know this rather than assume that? And yet, it is surprising how little attention has been devoted to assessing the pathways by which a new context becomes power. All too often, we are left with broad historical analogies and generalizations.²⁹ When tendentious work

Craven, ‘Colonialism and Domination', in Fassbender and Peters (eds.), Oxford Handbook of the History of International Law, 862-89, at 864-5 (providing ‘an outline sketch of this putative “relationship” between international law and colonial practice across the 16th—19th centuries in a way that... avoids the indulgence of believing that the law of nations was somehow abstracted from the material processes of colonial rule’, and drawing attention to ‘the parallel transition from a post-feudal mercantile economy to one centered (in Europe at least) upon industrial production and finance capital.’). On the complex historical relationship between the laws of families, markets and sovereigns, see Duncan Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850—2000’, in David Trubek and Alvaro Santos (eds.), The New Law and Economic Development: A Critical Appraisal (Cambridge: Cambridge University Press, 2006), 19—73, at 32—4; Duncan Kennedy, ‘Savigny’s Family/Patrimony Distinction and Its Place in the Global Genealogy of Classical Legal Thought’, American Journal of Comparative Law 58 (2010), 811—41; Janet Halley, ‘What is Family Law? A Genealogy’, Yale Journal of Law and the Humanities 23 (2011), 1—109 (Part I), 189—293 (Part II); see also Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to International Law’, American Journal of International Law 85 (1991) 613—45, at 638—43 (discussing the public/private distinction in international law).

²⁶ John D. Haskell, ‘The Scandal of Disenchantment: Blind Spots in Contemporary Anglo- American Approaches to the History and Politics of International Law’, Memphis Law Review 44 (2013), 37—94, at 66. See also Hunter, ‘The Figure of Man’ (criticizing ‘post-colonial’ focus on the colonial encounter as a crucible for early modern ideas about natural law rather than the influence of Protestant theology on intra-European territorial disputes).

²⁷ Samuel Moyn, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015), 11—12.

²⁸ See, e.g., Leo Gross, ‘The Peace of Westphalia, 1648—1948’, American Journal of International Law 42 (1948), 20—41.

²⁹ See, e.g., James Thuo Gathii, ‘Neoliberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy’, Michigan Law Review 98 (2000), 1996—2055, at 2024 (‘Although it may be too simplistic to draw analogies between the seeks innocent passage as historical correction, it can dim the appetite for investigation of the machinery of impact and the consequences of knowledge work. But it is not only the coy methodological habits of the historians themselves which get in the way. The consequences of historical contextualization are difficult to predict.

That international law was entangled with religion or trade or colonial power: good or bad for whom? It could be that international law's - altogether false - claims to be secular, universal, progressive and fair-dealing made - and still make - the world a better place. Or that the armature held up by such claims supported lots of other things one might regret toppling. I suspect not, but one would have to show that. If people knew norms were forged in the colonial encounter, they might find them less compelling. But tainted origins would not be the end of the story. Today, we might applaud the distributive effects of norms forged in the colonial encounter. We'd have to figure that out.³⁰

It is hard to say what would happen were people to accept international law's roots in Christian or European culture, or come to see it as an expression of pan-European aspirations and the Orientalizing imagination of European civilization about its various others. People who resist the authority of human rights norms may be comforted to learn their origin is a foreign religious victory rebranded as a universal consensus. People who promote human rights norms may be chastened, more open to alternative ethical visions and cultural authorities - or they may double down and shore up human rights' universalist credentials by comparative study. On the other side, linking international law with universal reason might raise the status of the discipline, but it might also mark the profession as effete, elite, unfit to exercise state power.

Placing a nominally ‘public' international law in the context of its many engagements with ‘private' and ‘commercial' affairs would foreground the

contemporary fad of collapsed states (which justifies foreign intervention for democracy, human rights, and economic restructuring) and nineteenth-century international law scholarship on ideas such as terra nullius and civilization (defined as Western) that justified colonization, there is nonetheless a continuity of ideas here. There is an undeniable genealogy in the sense that the idea of collapsed states replicates nineteenth-century colonial international legal discourse. In fact, as recently as 1995, a leading international lawyer, Inis Claude, suggested that a solution to the phenomenon of collapsed states was a return to the trusteeship system which failed by allowing too many states to become independent before they were prepared for the responsibilities of statehood.').

³⁰ For thoughts on how one might trace the distributional impact of legal arrangements and ideas, see Kennedy, A World of Struggle, 171-217. continuities between ‘sovereignty' and ‘property'.^[124] But which would get stronger as a result: sovereignty or property? If people understood the historical novelty of imagining ‘international law' to be removed from economics, would ‘free trade' be more or less persuasive? Might European social democracy seem more reasonable, neoliberalism less so? Perhaps Europeans would be more confident in the historical pedigree of their position in trade wars, the Americans more entrenched in the need to depart from history. It is hard to predict whose hand would be strengthened. Or say people can be convinced that what happened to the family - its localization, its relegation to a space neither market nor state, its association with ‘culture' - is part of what made the ‘international' what it has become: cosmopolitan, global, ‘above' the complexities of cultural or national difference. Would human rights more readily defend the veil or its prohibition?

If international law was forged in the colonial encounter, developed as a tool and expression of colonial domination, and continues to ratify inequality, it can be discredited without identifying the mid-level machinery through which it distributes power, wealth or prestige in the world. As analogues to colonial practice, United Nations disaster relief, development or international criminal law need not be unpacked or assessed in detail to be weakened. But would it be easier to think globally about poverty once we saw international law as colonialism? Antony Anghie's historical analysis leads him to suggest that post-war international institutions - especially the World Bank and International Monetary Fund - reproduce the inequalities of states in a way that makes it more difficult to think about poverty globally.^[125] But it is difficult to generalize about the consequences of historical reinterpretation. Although some post-colonial elites might assert their authority more effectively, experi­ence their victimhood more profoundly, the result for populations who live under their rule would remain obscure. And some national actors might more readily defend their inaction as powerlessness.

Beyond these distributional effects, intensifying the historical complexity of international law should make it easier to appreciate its multiplicity. It has been - and still is - different things to people in different times and places. It should be easier to remember that international lawyering is a different job in France and in New York, in Chile and in China, in a university or a foreign ministry or corporate firm once we grasp that being an international jurist today is an altogether different job from the one Vitoria or Grotius - or Vattel or Lorimer or Elihu Root - had. Different conceptual universe, different geography, different historical time.^[126] Today, international law is not ‘universal' even within the North. It is different in Europe and the United States, each home to a variety of traditions and approaches in struggle with one another. International law in the semi-periphery and periphery has been something else again, in each society inflected as much by local political or intellectual struggles as by engagement with the European or American ‘centre'.^[127]

This sensitivity to pluralism might qualify the conventional sense that international law has had a consistent project for hundreds of years: it is about peace, not conflict; it settles war and constrains its violence; it comes after empire and stands above religious or ideological conflict. An orientation to universality and coherence has made it difficult for international law to grapple with the hodge-podge of legalities that crisscross the globe: formal and informal, national and local and so-called international, corporate and public and private and criminal. Repositioning jurists in their time and place should help the discipline embrace international law's pluralism, fragmenta­tion and inconsistency.

Rather than foregrounding pluralism, however, contextual histories are often tempted to replace one coherence with another. So we find that international law was ‘really' about something like finding a universal solution to the problem of cultural difference or managing unequal relations in the key of equality. Yet if international law is really religious and commercial and private and European and colonial and rooted once and always in conflict, is there still ‘an' international law? Pulling the pieces together in large-scale narratives, contextual work can make it yet more difficult to identify the impact on specific struggles. Mainstream histories wrap things in a gauze of cosmopolitan virtue which makes wins and losses for specific interests less important than keeping history's progressive march on track. When revisionist histories place international law in the context of large historical forces like ‘colonialism', ‘capitalism' and ‘patriarchy' it can have a somewhat similar effect.

Contextual histories are most effective as criticisms of the contemporary use of international legal materials when they avoid the temptations to reaffirm the field's coherence or shy away from assessing its distributional impact.^[128] People today use international legal materials with a sense both for their virtuous promise and for their strategic usefulness. Although they don't ‘believe' in the virtuous self-image which forms the backdrop for their strategic pragmatism, the weak link remains the relationship between their strategic pragmatism and this strikingly undogmatic faith. Together these make it seem plausible to operate strategically for one's interest in a language of universal virtue. International lawyers have a similar attitude toward the field's theoretical weaknesses and contradictions. Perhaps there is no way to square sovereign authority with international legality: one must simply choose law, choose to see the world ordered and constituted by law as a kind of professional ethics, a virtue chosen in the shadow of a dark political history. This leaves the common sense of global legal managers somehow gnomic, contradictory and ad hoc.

Although one can use history to criticize such a practice for its unswerving immoral and unjust consequences, it might be better to think of international legal materials and authors as archaeological fragments that happened to survive - pottery shards from Pompeii - rather than as constitutive ideas for the transhistorical errors of the discipline. This might help to reframe international law as a discontinuous grab-bag of things people try as they struggle with one another. We would then want to figure out the work these textual shards did in the world, their distributive impact, their sociological usefulness in battle.^[129] This might help detach contemporary legal materials from their place in an imagined ‘system' to reveal the mechanisms by which they bring about unwanted consequences in particular places. If we see international law implicated in contemporary injustice despite its optimistic and reformist mien, the trick, it would seem to me, would be to foreground the incoherence, multiplicity and pluralism of the legal field, opening the door for sustained attention to the mid-level sociological mechanisms by which international legal ideas and institutions contribute to the routine distribution of power, wealth, status, honor or shame. The antidotes to undesirable international legal rulership, in short, are attention to its incoher­ent pluralism and distributional impact.