Introduction

History, Politics, Law Thinking through the International

ANNABEL BRETT, MEGAN DONALDSON AND MARTTI KOSKENNIEMI

It would be difficult to find a major figure in the history of European political thought who would not have attempted to say something about how authority emerges, or is justified and critiqued, in the world beyond the single polity.

Of course, the image of ‘law' among political thinkers and historians has varied as greatly as has the view of ‘politics' or the ‘political' among lawyers and legal historians. Perhaps typically in an academic context, until recently, specialists have not been overly keen to speak with each other about such matters. Nevertheless, not only Hobbes and Kant but many other European intellectuals have found their way into textbooks and specialist treatments by both historians of political thought and legal historians, even if the discussion of such figures has varied quite significantly. In more recent times, interest in the international dimension of history of political thought has converged with a historical turn among international lawyers. Both groups have found them­selves perusing the same archive and asking intersecting questions.

But historians of international law and political thought have not met each other only or even predominantly when contemplating the large figures of European political philosophy such as Hobbes or Kant. Indeed, few of them would think that either law or politics derives from their kind of abstract thinking, or can be captured only or even predominantly by examining it. They would also likely agree that their shared efforts to understand and describe a global history of international law or political thought would make concentration on such European figures quite problematic. As the methodo­logical chapters in this volume discuss, and the substantive chapters suggest, points of contact exist in moving the gaze from such figures to the develop­ment of international rules or institutions; or to the legal and governmental practices of diplomats, merchants and colonial officers; or to the position of women, the family and household. Both lawyers and historians of political thought have been interested in the genealogies of concepts such as ‘state', ‘empire', ‘company', the development and usefulness of divisions between the ‘public' and the ‘private', as well as the construction of networks of global contacts across cultural divides.

This is not to say that historians of political thought and of international law necessarily see eye to eye on those topics, share similar interests and know­ledge - or that their encounters have always been unproblematic. Each has paradigms and topics of especial interest that the other may sometimes find hard to understand. While lawyers may sometimes have difficulty in under­standing the subtleties that distinguish the interpretations that historians produce from their materials, historians may often find alien the normative urge frequently driving the writings of international lawyers. One source of these differences lies in the way the theory-practice distinction operates in the two fields: the relationship of history of political thought to present-day ‘politics' is not identical to the way international legal historians view their relationship to present-day law. But there are differences within the two fields as well as between them. In particular, Anne Orford and others have contested the terms of the ‘turn to history' in international law, arguing that a commit­ment to contextualist intellectual history necessarily stifles engagement with the modalities of law itself, and thus the potential of critical histories to intervene effectively in the present. Similar debates over history and the present equally characterise history of political thought and intellectual history more broadly.

Our motivation for producing this collection has been to enable authors in both law and history to think about what it is that unites and differentiates their respective pursuits. There is no point in seeking to reduce either perspective to the other. But there may be reason to have a clearer view of what the other seeks to accomplish, bearing in mind that neither discipline is a homogeneous totality but each a cluster of varying approaches, policies and points of substantive interest (and that conceptual frames and expectations of good craftsmanship within each discipline are themselves historical categories, subjected to critical analysis within those disciplines).

Brett (Chapter i) takes up the focus on context which has been central to debates between historians of political thought and international law - both within and beyond this collection - and among historians. However, she positions the methodology of ‘meaning in context' within a broader concep­tion of historiography as story-making, and uses that conception to argue against the reduction of history of political thought to the bare principle of contextualism, while at the same time defending its capacity as history to engage the present through the creative deployment of that same principle. Within the conceptual architecture of speech acts, and the distinctive tension between speaker and language that it involves, she illuminates the methodological and simultaneously political choices that historians must make to the extent that they study political as opposed to any other kind of thought. She goes on to sketch two alternative pathways of development within the history of political thought, which might be abbreviated as ‘realism' and ‘discourse', within which an encounter with historians of international law might fruitfully take place, expanding the relationship between history and politics into a triadic co-construction of history, politics and law.

Where Brett looks across from history of political thought to international law, Koskenniemi (Chapter 2) examines the ubiquitous encounter between international law and history from the inside of international law itself. He opens by considering how law has always used history, both in its practical operations and in reflecting on itself, repositioning the question of ‘context' within a complex and self-generative back and forth that resists schematic (or indeed polemical) generalisation. His contribution focuses on the variability of law's uses of history and the difficulty of inserting them in any closely crafted set of methodological principles. Sometimes history acts as a conserva­tive force, he suggests, and sometimes, especially in some recent texts, as an instrument of critique. He shows the varying ways in which history is invoked in the practice of international tribunals, and then moves on to discuss some of the ways in which international lawyers have used history to define the contours of the discipline itself, including through narratives of origin. By refining the self-understanding and self-constitution of international law, through different periodisations and by focusing attention on alternatively public and private forms of authority, history of international law may contrib­ute to the role that international law itself plays in the world.

In his contribution, Kennedy (Chapter 3) notes the affinities between critical international lawyers such as Orford, and earlier ‘law in society' and ‘law in context' scholarship, viewing present debates about the interaction between law and history of political thought as merely one iteration of arguments about the political implications of interdisciplinary approaches to law.

Simpson's chapter, by contrast, is oriented to a moment ‘after method'. In one sense this is an effort to imagine a moment in which insights from explicit methodological debates would be absorbed and perhaps transcended (Chapter 4). In this sense, he assesses the effects of these insights, and what they might still offer. Simpson detects in the new attention to method a disruption of established chronologies, ‘centurised' segmentations, and teleological visions of legal change. Like Kennedy, he sees an interrogation of anachronism and context in the writing of international legal history, and relatedly a calling into question of the notion of ‘greatness': great men, great powers and their place in the unfolding and writing of history. This scrutiny of greatness needs to be extended, he suggests, beyond the obvious ‘realist' targets. Many accounts of international law, of varying political inflections, characterise its history as one of accretion, but such accounts may implicitly entrench a view of international law as merely a response to ‘the instincts of Great Powers or the pathologies of Great Men'. For all this, however, Simpson also calls into question the adequacy of ‘method' to capture the breadth of current debates. There might be, he suggests, other matters at stake, although these are difficult to define - ‘writerly ethics', ‘style', a ‘literary' rather than a ‘technical' sensibility which might recover ‘history in all its strangeness'.

Reading these chapters, and the debates they chart, one has the impression that a moment ‘after method' is not quite here yet. The chapters acknowledge that there are questions of intellectual procedure which are, at least partially, constitutive of scholarly identity and integrity, and on which disagreements accordingly remain sharp and consequential. The question of ‘context' is one such. ‘Context', ‘contextualism' and its variants have become not only markers of particular positions, but contested ground. Prima facie, it would seem that it is precisely in the most disputed aspects of this encounter that there are the greatest prospects for sustained conversation: ‘context' invites exactly the close attention to particular characteristics of legal argument and legal habitus that is advocated, albeit in different ways, by both critical international lawyers and historians. But the difficulty is that contextualisation appears to offer a secure basis for critique only at the cost of consigning meaning to the past, in a kind of museum function that domesticates or controls its objects in a way that is challenged by activists the world over (don't just put a contextualising notice by a statue: take it down, change the space itself). In response, Brett argues that history is a form of narrative art that necessarily engages the present, and that history of political thought, specifically, inevitably doubles up past and present political meaning. In this she shares with the other chapters in Part I, and especially Kennedy, an emphasis on the politics of history - not only in the sense that historical choices involve political commitments, although they do, but also in the sense that authorship itself is a form of political action.

Kennedy goes beyond Brett in the way that he implicates the context of the past in the present. But both see the inevitable reflexivity of historical authorship not as a confusion or impasse that needs to be straightened out by methodology, but as a form of historical intervention or insertion of the author into the action. Context, then, does not cease to be important, but as an issue it becomes less about methodology and more about historiography, about the choices that historians either of political thought or of international law make when they use writing to draw the line between past and present, as Brett puts it. Simpson's chapter calls attention to the poetics of history as a site of ‘contestation and reimagination', using the work of Hayden White as a prompt to explore the complex interface between historical and legal poetics. Here, an essentially postmodernist commitment to the liberational possibil­ities of writing again displaces the question of method, and, as with Kennedy, this is connected to an emphasis on the question of authorial comportment, not merely scholarly discipline. A less definable sensibility of style responds more adequately to the estrangement which is both an ethical and a cognitive self-relation to the past.

Brett, Kennedy and Simpson all address history as a form of writing, a ‘writerly' engagement with the past. Yet Koskenniemi, in his opening snippets of remembered conversation, calls attention from the outset to the orality of history in the context of law, and it is again implicit in his subsequent treatment of courts as a primary site of both history and law. There are some commonalities here with Brett's sense of narrative, of the way in which the stories we tell ourselves about the past become the past, and, in Koskenniemi's contribution, become law. And yet orality complicates the emphasis on writing as the medium in which the line between past and present is drawn. Koskenniemi begins in medias res, in history as time that is passing, fast, as we speak (no time for novels). In parallel, ‘history' as it figures in his account of practice tracks normal spoken usage in shifting between what happened, what we remember, what we self-consciously or formally choose to recall (perhaps in a particular persona, such as a judge), and only finally something that we write. The complicated mutual dynamic that Koskenniemi identifies between history in the making and law in the making both invokes and puts into question all these senses simultaneously.

Nevertheless, his emphasis on practice, defying methodological strictures, aligns his account with the other chapters in Part I. All of them privilege history as something that we are in above something that we write about. It is through this lens that they address a theme that will run throughout the volume, that of ‘realism' as a paradigm both of politics and of international relations and international law. Realism (in its different forms) offers one very clear way of joining up history, politics and law in the kind of ‘triadic co­construction' identified by Brett. The way in which it constructs agency and power supplies an apparently compelling picture both of politics, as political actors seek strategically to increase their power, and of law, as either an instrument in the pursuit of power or the restrainer of it (in the heroic vision of international law that Simpson identifies as perpetuating the realist optic). The historiographical consequence is to position history as a form of critical reportage, as Brett suggests in her treatment of history of political thought. Implicitly, the historian is not herself one of the ‘Great Powers' or the ‘Great Men', but she sees what they are up to on the chessboard of the world, in a photographic rather than writerly encounter with the past. As Koskenniemi notes, twentieth-century histories of international law have often associated it with the emergence, expansion and effects of modern statehood and state policy, taking wars, diplomacy and peace-making as central threads. This approach, reflecting the realist vision of politics, is to take a particular view of what international law is, where it comes from, and how it can be known, which, despite its contentiousness, is rarely made express.

Earlier and contrasting narratives had situated international law in broad trajectories of progress and enlightenment, often with a strong commitment to cosmopolitan progress, and depicted sovereignty as an obstacle to the attain­ment of international peace and solidarity. Although the visual metaphor of enlightenment may seem the naive counterpart to the critical trope of expos­ure, these histories did respond to the intuition that law is not just an effect of state power - a position more recently associated with constructivist views about the power of law as discourse, and of language as structuring the international world. In broad terms, this contrast within international law responds to the way in which Brett diagnoses the diverging possibilities inher­ent in the ‘conceptual architecture' of speech act theory deployed as a method for history of political thought. In her handling, the move from the pole of the actor towards the pole of language demands a different historiographical voice and potentially a different historiographical form, one in which the historian is not positioned as an external reporter on language games but is herself, partially but not entirely, within the game. That sense of split-level positioning is paralleled in Simpson's appeal to meta-history, while Kennedy moves to position the historical voice more fully within the game and thus to concen­trate on the performative nature of the critical legal historian's speech act.

That negotiation between inside and outside discourse, inside and outside the history that one writes, is paralleled in the history of international law and in international law itself. Studies ‘internal’ to law have a tendency to collapse into something other than legal history - into normative or jurisprudential analyses, bound up with the particular ways in which law incorporates and narrates history. Studies of law that are ‘external’ in the sense of pulling to the fore law as an instrument of powerful actors tend likewise to make the specifically legal content of the analysis disappear by emphasising the strategic and political aspects of past recourse to law. It is hard to be both inside and outside at the same time, to take the legal frame as given and to be critical of the frame itself. The chapters in Part I suggest that it is here that the real struggle over ‘context’ lies. As Koskenniemi suggests, however, the legal historian’s stance vis-à-vis the law of the present is further complicated by the sociology of the field. As international law has expanded, the formerly tight relation between academia and the profession has loosened. Lawyers tend to be acutely conscious of law as responding to something outside law, to political, economic or technological change. But precisely because the pro­fessor of international law is no longer expected to belong to the same elite from which foreign office professionals are chosen, their simultaneously authorial and legal self-positioning is more of a choice. Necessarily familiar with the ‘internal’ face of law, they may choose to write from an external position - taking roughly the stance of some other social scientist - or to maintain at least a foothold within, with a claim that their account of the law’s past can still sound directly in the law of today. The stakes and potential of each strategy are contingent, to be negotiated.

Behind all the chapters in Part I is a powerful sense of change - changing time and changing space - with which both history and law must grapple, and in the process confront the politics of how they do so. To capture this sense of movement, Part II of this collection is called ‘Thinking through the International’, with the accent on through. The chapters, which offer a cross-section of current work by historians and lawyers (and others who might not position themselves so clearly as either), do not speak directly to the same historical phenomena, nor necessarily to any shared conception of the international. They span diverse areas, from the twenty-first-century legal ordering of the oceans to early-modern understandings of gender in the formation of the state. Authors are not necessarily engaged in the same project or asking the same questions. But the juxtaposition of chapters illustrates the extent to which authors of different disciplinary orientations are grappling with some of the same themes, concepts or boundaries. Engaging with such a rich cross-section of work has the effect of unsettling referents and rendering disciplinary footings less sure. This disorientation will not drive us all to the same ground, or the same view from a given point - but might render our disparate grounds and viewpoints more contingent, and create new possibil­ities for interdisciplinary conversation. In this spirit, ‘the international’ of our title is not a fixed reference, but represents a space of conceptual movement, simultaneously in history, politics and law.

Bearing in mind the complex dynamics of that three-way relationship, and the way in which boundaries on all levels are called into question in the process, the chapters are arranged under themes of potential dialogue (‘Law and Constructions of the Political’; ‘Empires, States and Nations’; ‘Institutions and Persons’; ‘Economics and Innovation’; and ‘Gender’) rather than formal areas of study. Both the thematic arrangement and the distribution of ‘historians’ and ‘lawyers’ in relation to the themes have shifted since the genesis of this volume. The chapters might equally have been arranged otherwise, to privilege different interactions and affinities, and we anticipate that readers will in turn see possible new interconnections of their own. In an attempt to provoke this - but not prescribe any particular reading - we offer below a brief outline of each chapter.

The first pair of chapters tackles a central concern of the whole volume, ‘Law and Constructions of the Political’ (Chapters 5 and 6), through the work of Carl Schmitt. Schmitt has been the subject of extensive commentary in part because of his idiosyncrasy, so he does not here appear as a representative figure. However, his work has a canonical importance for the law-politics relation, and for the tradition of ‘realist’ political thought. This means that it is revealing not only as a resource in its own right, but as a foil against which others articulate disciplinary or political positions: a dual significance probed in these chapters. Von Bogdandy and Hussain (Chapter 5) note the import­ance of Schmitt’s legal training in sharpening his systematic rigour and polemic; and in attracting his attention to the (legal) decision, and by exten­sion the exception (concepts which would be crucial to much of his thought). They trace the grand lines of Schmitt’s theorisation of the political, the state and the international, and its contribution to law. Smeltzer and Kelly in Chapter 6 probe one manifestation of Schmitt’s broader commitments, namely his theorisation of the Rhineland occupation, and thus offer a fine­grained sense of the tenor of debates between Schmitt and his contemporaries. Both chapters deal with Schmitt’s own treatment of law and the political, but also the stakes for Schmitt, and us, of positioning him as jurist or politician.

Rivalrous claims to genuinely juridical thought were an important part of the confrontation between Schmitt and interwar liberals, as each struggled for authority and their own vision of the law in it. Schmitt engaged in a disingenuous (re)positioning of his own after the Second World War, casting his own work as mere academic adventurism, hijacked by the practitioners of real politics, and thus insusceptible to criminal prosecution. The implications of the law-politics divide still resonate today, in the reception of Schmitt's thought. For von Bogdandy and Hussain, it is the particular intellectual context of the German legal academy which helped produce Schmitt as a thinker. Law and the legal academy proved highly generative of a strand of political thought which was, in turn, corrosive to law as a container for, or bulwark against, the political. For Smeltzer and Kelly (Chapter 6), too, it matters that we understand Schmitt as a jurist - but for different reasons. We must, they suggest, see him as a ‘jurist [who] wanted to win his cases, and... curated the law and its interpretation in political contexts'. This, coupled with Schmitt's own argument for the contingency of the historical situation, ought to inoculate us against reading Schmitt in the wrong way, transposing his work to timeless models of agonistic pluralism or spatial politics.

The next thematic pairing, ‘Empires, States and Nations', expands reflec­tion on the importance of the state as a conceptual frame, in and through the law of nations, for our understanding of past, present and future political order. Pitts (Chapter 7) works within the ‘law of nations' as a broad language of political and moral reflection, particularly prior to the professionalisation of international law in the late nineteenth century. She highlights the role of canonical authors, particularly Vattel, in popularising a conception of nations, or states (he used the terms interchangeably) as moral communities of equal status. Although some revisionist historians of international law have under­stood this as accommodating pluralism, Pitts asks whether Vattel's contribu­tion - understood not as aspiration but description - actually concealed from view the persistence of empire. Hunter, too (Chapter 8), is concerned with the historical and political implications of our (mis)understanding of the state form, particularly as it manifests itself in Africa. Like Pitts, she objects to the way in which a focus on states, and the road to their creation, ‘obscures a much messier historical reality in which the jurisdiction of states has always coexisted with other sorts of authority'. She takes aim in particular at dominant popular and scholarly narratives in which the state form was imposed on a decolonising African continent from outside. Characterisations of this kind are, she notes, made in the service of a critical project, namely a search for alternative visions which failed to flourish at independence. But they reify a particular normative model of statehood, and occlude the range and intensity of local debates about future political ordering.

Hunter emphasises that the post-colonial construction of the state unfolded in relation to other sites of politics. The prospect of regional federation and greater movement and exchange across borders accommodated tensions between the new statist order and existing modes of life, and the emergence of individual rights as a matter of international concern, together with inter­national organisations as forums for individual complaint, offered recourse for post-colonial citizens seeking to counter repressive governments. Where Pitts sees dark dimensions in the juxtaposition of informal empire (through wealth, military might or the bureaucracy of international governance) and formal sovereign equality, Hunter highlights the plasticity and potential in aspects of this duality. The post-colonial state was made, not imposed, in a world in which the state was only one of a number of sites of politics, and in which this multiplicity of sites offers some hope for emancipation.

In these early chapters, the state features as the international ‘person' par excellence - but is not alone, jostling with empires, federations, corporations and international institutions of various kinds, even individuals. The thematic pairing of ‘Institutions and Persons' tries to capture this sense of a variegated and crowded international (or interpolitical, per Lauren Benton) domain, and build on what has already been suggested about the way in which the theorisa­tion of institutions and persons helps constitute the international or interpoli­tical. The chapters do not begin from any fixed definition of ‘institution' or ‘person'; indeed they reveal the duality of ‘institution' as both intellectual configuration and concrete organisation, and examine efforts to grapple with the very notion of personhood.

McClure (Chapter 9) engages with intersecting institutions, in the sense of both configurations or complexes of ideas and practices (hospitality, poverty), and concrete, physically implanted organisations as sites of social control (hospitals, monasteries). She emphasises the ‘complexity of conceptions of hospitality as a mixture of moral norms, religious obligations, and intersecting rights to travel and to access resources'; but also the instability of power relations bound up with hospitality. On one hand, it is clear that the articula­tion of a ius hospitii as part of the ius gentium played a crucial role in the legitimation of Spanish conquest, but it ‘did not resolve the ancient tensions within the concept of hospitality as an arbitration between the power of the host/guest or giver/receiver'.

Donaldson (Chapter 10) examines the efforts of contemporaries to under­stand the League of Nations - the first quasi-universal, general-purpose inter­national institution - as a person. The task of pinning down what the League was presented a variation on puzzles familiar to political thought, about artificial personality and collective agency. The League still ‘fell somewhere between an “it”, a unitary agent, and a “they”, a collective of organs or members'. If it was the latter, it was not clear how the ‘collective' became one - though an implicitly cosmopolitan ‘public opinion' or ‘popular will' often served as the deus ex machina. Questions about the personhood and agency of the League were particularly acute for those working within the Secretariat, and became intimately linked, in the inner life of the institution, with questions about speech. Whether and how the League might speak for the international depended on which individuals might speak for the League, and on what terms. This knitting together of abstract and concrete challenges the limits of legal and political thought, and challenges the disciplinary perspectives which shape approaches to institutions today.

These chapters illustrate, in radically different sites, the intermingling of self-consciously juridical vocabularies and traditions with other discourses. Whereas Schmittian debates posit a sharp divide between law and the polit­ical, these chapters (and others in the volume) show the porousness of this boundary. Metaphors and categories are at once juridical and open to other discourses; and juridical vocabularies and texts are invoked and interpreted by individuals who are themselves only marginally ‘legal' agents. These accounts suggest the rapidity and contingency of theorisation from a profusion of possible vocabularies, each of which might yield a somewhat different reper­toire of arguments. The chapters also illustrate ways in which theorisation is bounded not only by material and physical circumstances, but by notions of role or office (host, guest, international civil servant). Legal thought is shaped not only by the professional role of lawyers crafting positions for clients and sovereigns but by a wider range of roles or loyalties, imposed or chosen.

The section on ‘Economics and Innovation' focuses closely on two themes already present, if only implicitly, in much of the rest of the volume. ‘Economics' or ‘commerce' is arguably both a discourse in its own right and a terrain over and in which law and politics are constructed. The articulation of a ius negotiandi and ius hospitii were as significant for the facilitation of appropriation and extraction as they were for setting the political relations between peoples of the ‘Old' and ‘New' Worlds (McClure). The imperative of forcing China open to trade revealed tensions within the law of nations about the right of a state to set its own commercial policy, and commerce as a norm of sociability between equal states (Pitts). Commentators on the League reached for analogies to private law structures of joint ownership, or the shareholder corporation (Donaldson) - more or less the transposition of financial methods onto political and state life which Schmitt decried in the putative split between sovereignty and territorial jurisdiction (Smeltzer and Kelly). As Kennedy writes, our present boundaries between economics and politics, like the boundaries between private and public, are ‘of recent vintage, marked and managed in legal terms: they could be otherwise'.

‘Innovation', too, has been glimpsed throughout the collection. Brett notes the ‘distinctive historiographical tension' involved in the original Skinnerian handling of conceptual change in terms of linguistic innovation, poised between individual agency and structuring discourse. The particular innov­ation bound up with ‘the state' in its distinctive modern form is foundational to both political thought and to positivist law. Pitts and Hunter have charted the way in which the state has been reconceived and articulated in different moments in the construction of an international, or interpolitical, domain; and Donaldson highlights the troubled and arguably still incomplete process of inventing the international organisation. In some of these chapters, one glimpses a notion of innovation at some remove from that central to much intellectual history: one that is gradual enough to render it difficult to identify particular moments of evolution, and in which the work of innovation might not occur exclusively or even primarily in language, but run through bureau­cratic categorisations and quotidian practices, the sum and implications of which exceed deliberate design, or even awareness, of particular individuals.

Understanding ‘innovation' broadly as change, it may seem intuitive to couple ‘economics and innovation' together. One of the most influential accounts of historical change, informed generally by Marxist theory, is pre­cisely economic in nature. The two chapters in this section, however, seek to complicate this relation. Ranganathan (Chapter 11) explores the role of law in consolidating ‘an imaginary of the sea as an assemblage of jurisdictionally discrete sites of economic activity'. She traces the protean invocation of ‘freedom of the seas' through time as a spur and foil to this process, and the increasingly intricate ways in which law engages with the biological complex­ity of the ocean world. Her chapter emphasises both the salience of a Marxist analysis and the somewhat autonomous operation of the law within this. The crafting of legal regimes unfolds through particular legal technique, and lawyers are driven not only by (often remote) perceptions of commercial or national interest, but by considerations of what approach would best uphold the law itself as a mode of governing resource allocation, bringing interest into relation with an array of more complex ideological, and political, constructions.

Whereas Ranganathan gives us a view from inside a process of innovation - the twentieth-century reimagination of the oceans - Isaac (Chapter 12) cri­tiques the way in which intellectual historians theorise processes of concep­tual change. Isaac traces affinities between a model of conceptual change common to Skinner, Kuhn and Hacking, particularly its emphasis on innovation, and Schumpeter's account of entrepreneurial action, which emphasises the entrepreneur as the source of creative response, and growth, within an economic system, achieving ‘new combinations' of materials and forces of production. This relation between theories of conceptual change and economic thought is, Isaac concedes, ‘mediated [and] indirect', much like that between raison d’etat and historicism; but it may have significant impli­cations. Oddly enough, a model of conceptual change which foregrounds the figure of the entrepreneur leaves questions of agency rather underdeveloped. Although ‘the theory of enterprise looks like the description of a type of agent,... in practice there is no such... discrete social type'. Moreover, an account of innovation inflected by economic theory may also be drawn into treating innovation as ‘market-led' and ‘non-intentional'. Thus a theory which appears to privilege agency may foster a kind of ‘fatalism' about our own capacities for political innovation. Together, these chapters invite renewed attention to questions implicit elsewhere in this collection, and in the history of international law, about how we understand change and its theorisation.

It may seem perverse to close the volume with two chapters in a section entitled ‘Gender'. Foundational accounts of the political, and indeed of law as a social phenomenon, assume a progression from the individual or familial, to the communal, to the political and then the interpolitical. Gender, one might think, ought to come first. Yet these chapters insist that origins (bodily, conceptual, temporal) cannot be held in place, and show how attention to gender works against familiar narratives of foundation and development. Becker (Chapter 13) observes that, although gendered familial relations lie at the heart of the ‘natural' state from, or against, which the political was defined, theorisations of the state have tended to focus on the relationships between male citizens, sequestering male-female relations from the political story. In fact, Becker argues, early modern thought represents a stark challenge to enduring fusions of the biological with a patriarchal politics. While commen­taries on Roman law and on Aristotle narrated ‘the Roman systematic division of private law into natural law, ius gentium, and civil law' as ‘intricately interwoven with the development of humankind itself', gender troubled the relations between these trajectories. As Becker insists, the equality of man and woman, natural and civil marriages, childbirth and breast-feeding were tightly enmeshed with the emergence and maintenance of the ‘public' and ‘political' in the first place. What emerges from these writings is that women's subordin­ation was a ‘historical, but not a logical, let alone a natural, outcome'. It was an outcome, one might add, in which law played a complex role. Law entrenched subordination in some spheres, while the plurality of bodies of law in play resisted any comprehensive legitimation of this subordination.

Knop (Chapter 14) takes up this pluralism through what might be seen as a modern iteration of matrimonium in the ius gentium: the way in which marital and familial relations cut against a strict demarcation of national legal orders from each other, and of ‘private' from ‘public' international law. Recovering ‘the lost private side' of international law helps us see the layering and interpenetration of international and national law, foreign and domestic law, as politically generative. To nationality, understood as a political bond, private international law offered a rival criterion of domicile, entailing a more holistic sense of ‘homeness' (quoting Lorimer). To obligation, private international law offered a counterpart notion of ‘comity', hovering somewhere between absolute obligation (then being coded as manly honour) and mere courtesy (then being coded as feminine). Knop argues that comity might be recovered, and connected with notions of ‘friendship' between nations, to open up a richer tapestry of interstate relations. These two chapters together show how attention to gender and family offers a constant challenge to the imagination of the state as self-contained. Gender retains a capacity to destabilise relations between the ‘natural' and the ‘political', stressing the bodily and the relational alongside, and against, the political. It opens up a different temporality - a ‘transnational everyday life', in Knop's words, of births, marriages, deaths and transmission of property - rather than the episodic crises on which much (public) international law scholarship is focused. And it offers, potentially, a different sense of what it means to live within a state (and under its law), and of how states might live with each other.

Gender thus has a powerful capacity to complicate the past and to renew analysis of the legal and political present, as it works across and between political entities and legal orders, forcing a sort of porousness to the other. In this it exemplifies ‘the international' in the sense we intend it here, not as a fixed order between states but as a space of multiple and intersecting legal and political relationships, the history of which must raise the question of what is the legal and what is the political in the story that it tells. It is too neat to see attention to gender as the inverse of a challenge that crosses many of these chapters, that of loosening the anchoring of history of political thought and history of international law in a European paradigm; and yet there are parallels none the less. Gender, placed at the end of the thematic chapters, reflects back upon the start, with Carl Schmitt's theorisation of the political, the state and the international. Against his construction of an existential division between the space and law of Europe and what lies beyond, most of the chapters show the distinction being made in more intricate, variegated ways: through the operation of a protean ius hospitii across radically different cultures (McClure), or the late integration of the post-colonial state into a fabric of customary norms pre-dating these states' own creation (Ranganathan).

To be sure, there is resistance: nationalist leaders in the colonised world seek to recast states and federations as vehicles for political transformation (Hunter), and post-colonial states grasp the legal tools available to try to fashion a New International Economic Order (Ranganathan). Nevertheless, to the extent that the chapters in this volume aim at shaping intellectual trajectories for the future - and many do - the impetus is often towards a re­narration of the historical unfolding of European empire, using its intellectual resources against it. For Pitts, aspects of the old law of nations may yet offer substance for a critique of empire; Koskenniemi points out that the scope of new histories of international law is paradoxically moving back towards the old ius gentium, whose all-embracing nature allows us ‘a fuller view of the role legal concepts and practices have had in making the world what it is'. For Knop, a recovery of gender and private international law - a body of law open to the social but reproducing distinctions between Christian, civilised polities and others - might inform relational feminist approaches to current inter­national law. McClure sees in the ethics of hospitality, and the recognition of contradictions within hospitality at a given moment, a means of analysing how ‘transcultural interactions have been managed and how unequal distributions have... become normative'; similarly, Kennedy insists that only examination of ‘the machinery allocating power and wealth within what we remember as a more coherent and virtuous order' can get us to new political horizons.

For all these contributors, new histories of political thought and of inter­national law alike bring critical resources to politics and law in the present, and therefore an opening to a different future from the one implicitly foretold in existing narratives of the past. But a changed history is not merely an added resource for politics and law to pick up and use in the course of doing what they always did. Rather, it changes - or at least challenges - how we conceive of politics and law in the first place. History, politics and law are all mutually imbricated, and to think through the international inevitably raises the ques­tion about what it means to be ‘inside' our own disciplines and conceptual resources. The challenge is how to acknowledge this enclosure while also staying open to conceptualisations of the world and its trajectory which emerge from other disciplines, traditions and ways of thinking.

part i Methods, Approaches and Encounters