3.5 A POST-WAR INTERNATIONAL ORDER UNDER SIEGE: LESSONS FROM CRITICAL HISTORIES

When contextual historians chastise the international legal profession for supporting an unjust order in the name of cosmopolitan virtue, the analogy with criticism of elite commitments to liberal internationalism can be uncom­fortable.

But contextual histories also suggest a more productive way to understand what's going on, reminding us that imagining a liberal/cosmopolitan world requires a lot of forgetting. It has hardly been humanitarian or liberal for everyone. Nor has it been orderly. Contemporary arrangements echo colonial arrangements we readily identify as unjust. Closer examination of our flat world of global markets and liberal commitments would excavate an equally chaotic struggle for advantage. Contextual histories are particularly useful for this purpose when they examine the machinery allocating power and wealth within what we remember as a more coherent and virtuous order.

Foregrounding the distributional consequences of mid-level legal and insti­tutional arrangements in a disordered - or multiply ordered - world would also give us a different picture of the losers. They have not been left out: they have been defeated. In this, the post-war liberal order is not unlike mercantilism or empire. The machinery is different - the roles of public and private law, of local government and global financiers have all been reshuffled. Economic activities have always been linked to political power. Corporations and investors have always relied on powerful states to protect their influence and every hegemonic power has developed an infrastructure congenial to its interests. The point of ‘free trade' is not only to generate global gains, but to do all in one's power to get and keep those gains for oneself, our city, our country. And people today are just as ruthless about this as ever. Following Nixon's decision to decouple the dollar from gold, US Treasury Secretary John Connally is reported to have said: ‘my view is that the foreigners are out to screw us, and therefore, it's our job to screw them first.'^[130] It is not only Americans who talk this way.

A history of law's role in domination and distribution would clarify the ways in which such sentiments are given expression in regimes which seem impar­tial, even benevolent. The legal institutions of European Union and London financial hegemony, for example, are not only avatars of peace and prosperity.

They establish hierarchies of haves and have nots when monetary union becomes a recipe for debt bondage, or free movement for the periphery and social protection at the center becomes an engine for relative wealth and stagnation.

Although the global order may not have been benevolent, however, neither was it ever an iron cage.

We might read contextual histories of international law as critiques of the idea that politics is outside expert rule. They argue that international law did not evolve as the distillation of political action into universal wisdom. Nor is the ‘legality' of international law a function of its separation from political discretion, its scientific objectivity and interpretation by mandarin jurists. If international law was made in the back and forth of political and economic conflict, rather than a law rising out of and above or coming after politics, it would be better to think of politics having been there all along.

And all along there were choices. One need not choose between the modest reformism on offer from the mavens of elite management and outsider agitation. Where money, credit, labor and capital - like political power and right - are legally constructed, they could be and have been put together in lots of ways. The legal boundaries between economics and politics, like those private and public actors, are of recent vintage, marked and managed in legal terms: they could be otherwise. There may be more possibilities within the framework of the nominally liberal global order, just as there have been in other eras.

By tracing the impact of legal arrangements on political and economic trajectories, historians could illuminate how economies put together differ­ently would operate differently and how they might be changed by altering the direction for the routine work of managing the ‘system', adjusting the entitle­ments and expectations that link people in relationships of relative privilege and vulnerability. To rearrange them would require struggle on the terrain where inequality is established and maintained. But this is not a matter of outsider populism or detached academic reflection. It is a matter, in Max Weber's words, of the strong slow drilling through hard boards in the insti­tutional arrangements and vocabularies of modern expert rule. Historians can help us get started.