2.1 INTRODUCTION

Law is an intensely historical practice. From Bodin to Savigny, from the veneration they have felt for the ‘ancient constitution' at home to the energy with which they have embraced modernity and progress, lawyers have enlisted history to assist the power of what they have wanted to say.

All this is obvious and frequently noted. One need not be a card-carrying member of any historical school of jurisprudence to understand why it is useful to examine the past so as to determine what would be the right thing to do now. Law is a ‘social phenomenon', we like to say, and indicate thereby that it did not suddenly fall from the sky.

To be able to say something about binding legal rules is the heart of the competence of the (international) lawyer. But history is neither the only nor necessarily the predominant way to argue about rules. They may also be debated on deontological or utilitarian grounds, and they may claim to reflect technical or scientific knowledge. The choice of the justifying vocabulary depends on the expectations of the audience. Among international lawyers, as with foreign policy experts and diplomats, historical arguments have tradition­ally carried much weight. A discourse that speaks about war and peace­making, sovereigns and state power, is almost automatically geared towards historical illustrations even when its point relates to the present.^[43] It is a simplistic though not incorrect generalisation that historical arguments have greater pertinence in European legal contexts than in the United States - though again, US lawyers are trained to pay especial regard to what the founding fathers may once have believed. In international law, legal realism, functional jurisprudence and the policy-oriented approach used to propose setting aside rules as mere accumulations of past practice, not to be taken as decisive for determining future behaviour.^[44] But the proposed turn from legal to policy conceptualism and its unabashed espousal of US foreign policy goals prevented it from entering mainstream international law.

Nevertheless, one need not be a Marxist to feel that ‘[t]he tradition of all dead generations weighs like a nightmare on the brains of the living'.^[46] There have always been international lawyers who have insisted on the need to figure out new ways of thinking and acting so as to ‘respond' to the political, economic and technical needs or ‘challenges' in the international world.^[47] This is part of the cosmopolitan progressivism of the international law profes­sion, present in the field since its inception in the late nineteenth century. In a path-breaking book from 1964, Wolfgang Friedmann drew attention to the great changes that had occurred in international society since the early part of the century that ‘must lead to a far-reaching reorientation of our conceptions of the science and study of contemporary international law'.^[48] Such progressivism also inspires article 13, paragraph (i)(a), of the UN Charter, that calls for the General Assembly ‘to encourage the progressive development of international law and its codification'. If the word ‘modernism' has any meaningful scope, it clearly applies to that aspect of the international law profession that is intensely engaged in the reform of international law and institutions as a key aspect of its commitment to international peace and justice. Reform is the life of international institutions, and the rhetoric of constant adjustment of the law in view of the ‘needs' or ‘requirements' of ‘development' or ‘globalisation' is everywhere in international law.^[49]

New critical studies have often wished to put into question the limitations and direction of reformism, the suggestion that the path to progress is obvious and inevitable, dictated by the natural laws of history itself.

International law is both a reflection of (international) society and some­thing independent of it, a product of past behaviour and a set of normative demands about how we ought to behave. I have elsewhere discussed this duality in terms of the tension between ‘apology' and ‘utopia', the persistent need to think of international law as a concretely verifiable product of the way we have lived in the past but also a normative set of requirements about how we should live in the future.^[52] It is neither history nor political morality and its truths cannot be reduced to verities produced within those other fields (though such verities may sometimes be helpful for law, too).

professional work undertaken in what Karl Llewellyn once called ‘law-jobs'.^[53] These are jobs offered by institutions that invite lawyers to produce profession­ally competent arguments in situations of controversy where people usually have something important at stake. The professional competence that under­lies the practical side of law is above all a rhetorical skill that is tested by the persuasiveness of the arguments produced in such institutional contexts. The courtroom is the paradigm case, but professional competence in international law is sought after in all kinds of institutions, public administrations, non­governmental organisations, and so on.^[54]

There is some useful writing on law as an ‘institutional practice' showing that the types of legal argument, including historical argument, vary in accordance with changing institutional biases.^[55] An international court deal­ing with a territorial dispute and a human rights tribunal speak differently. In the former, parties typically argue about demographic, economic and political developments. Old treaties are interpreted and their relevance pondered at length.^[56] Human rights discourse is less expressly historical - but there, too, research is conducted on institutional practices and patterns of treaty inter­pretation. One might assume legislative institutions to be intensely interested in the foreseeable effects of their proposed rules. But when the UN's International Law Commission embarks on a codification project, it will first produce a report on the ‘past practice', including the practice of legal theoris­ing about the relevant substance; and rarely, if at all, conducts any studies on the effects of what is being proposed.^[57] That is an aspect of the conservatism of that institution that puts it somewhat at odds with the modernist functionalism of UN diplomacy in general.

Recent histories have sometimes told the story of the discipline of inter­national law itself in a new way. Individual jurists have been situated in their political, academic, professional or national backgrounds. Studies have focused on international law in a particular continent or linguistic area with especial attention to non-European areas and actors.^[60] It is easy to understand the attraction of such studies. They avoid dubious and Eurocentric general­isations about international law's historical role as a force for peace and progress, reminding us that international lawyers did not always have similar preferences but wrote sometimes as supporters, sometimes as critics of empire. It is hard to say what effect these histories will have on present law or the world it seeks to regulate. Maybe they do not always even seek such effects. Now that history has become an expanding and widely appreciated part of academic international law the danger exists that it loses its critical edge by limiting its focus to the field's internal divisions and transformations without the ambition to expose law's complicity in the world's injustices.^[61] But even if the activist aspect remained, it is not obvious what its effect will be on legal practice or the world. Because definite causalities are so difficult to establish, critical works tend to grapple with the instrumental question through such fuzzy notions as legal ‘culture', ‘consciousness', ‘sensibility' or even ‘professional competence'. They acknowledge the co-dependent relationship between legal thinking and practice on the one hand, and the world in which they operate on the other. But they remain, as Tomlins puts it, ‘descriptively evocative rather than statements of theory or testable hypotheses'.^[62]

One last preliminary point. Through most of international law's profes­sional period (i.e. from the late nineteenth century onwards) textbooks used to convey an image of international legal history as part of the world-history of wars, peace-making and diplomacy, associated with the ways in which European theologians, jurists and philosophers had written on them. The teleological orientation of these histories made them part of the professional consciousness that united international lawyers in the academy with those in practice - Oscar Schachter's famous ‘invisible college'.^[63] This homogeneity or sense of a joint project no longer exists. The ‘international' no longer stands for an obvious set of commitments and the ideological leanings of different rule-regimes are no longer necessarily in harmony. Also the academy has changed. The professor is no longer expected to belong to the same elite from which foreign office professionals are chosen. Possibilities have become available for choosing critical or avant-garde approaches that no longer pre­sume automatic commitment to the priorities of the field.

To make these points more concrete, I will now first turn to examining some situations where international law appears to operate as a ‘practice of history'. Here, history enters competent international legal speech in a variety of reasonably well-known and accepted ways. I will then turn to the history of that practice. There is a kind of double historicism involved where the role of history within a legal culture or consciousness appears itself an aspect of the history of that culture or consciousness. The final section will examine the debates regarding the politics of writing histories of international law today.