2.4 WHAT IS INCLUDED? THE ROLE OF POWER AND POLITICS

Part of international legal history has always focused on ideas about the inter­national legal order. Textbooks, journals and specialised monographs have engaged with the big names of history of political thought - Aquinas, Vitoria, Grotius, Hobbes, Rousseau, Kant...

‘Natural law' and ‘positivism' have been large items organising the Literaturgeschichte of the field. Individual themes have dealt with the possi­bility and conditions of peace among nations, self-determination, the just war, legitimacy, humanitarian intervention and human rights. Robert Redslob's 1923 Les grands principes de droit international traced the fate of four leading principles - peace, solidarity, state freedom and pacta sunt servanda - through the centuries. A more recent work by Georg Cavallar asked whether standard texts represented ‘cosmopolitanism' and ended in a nuanced assessment - well, ‘yes' and ‘no'.^[99] Studies in the liberal history of ideas mode have engaged these thinkers in normative conversations through vocabularies of law and justice they themselves employ.^[100] While many recent studies have aspired to read past jurists in their ‘contexts', it has also seemed important to imagine those contexts as parts of longue duree patterns that allow measuring their contemporary significance.

The first relates to the stakes in legal practice. Law is struggle. Lawyers always disagree; they disagree because they have different clients and agendas, because the institutions where they work require of them different kinds of service and the institutions matter because they affect the distribution of materials and spiritual values. At each moment in any meaningful legal context, it may be possible to identify a main position (or a structural bias) and subsidiary position that seeks to challenge it and the scheme of distribu­tion that it stands for. There is a systemic or constructive aspect of law, too, that is especially visible in the legal academy. Here the underlying struggle is often hidden in an effort to explain the legal system as coherent and by and large rational. Historians of international law have perhaps paid too much attention to those constructions, at the cost of seeking to find out the terms of the struggle and how they are transformed at successive moments. To link legal practices to the stakes they organise and distribute might require leaving the constructivist comfort-zone into historical sociology or the history of political economy. That has been the direction of many recent critical histories. The trick here is not to believe that law's problems have already been resolved elsewhere (in history or philosophy, say) so that it would suffice to apply insights from those other fields, but to learn from them about the role that law and legal institutions have played in the lives of actual human beings. In the end, it remains for lawyers to draw the conclusions regarding how that past experience should inform today's practice.

Second, it is useful to remember that law is a linguistic phenomenon. It is about the polemical use of authoritative concepts in specialised institutional contexts with the view of supporting, defending, consolidating or attacking particular claims that usually concern distributing resources. This makes it important to examine the way in which law's linguistic meanings emerge, consolidate and are challenged. How does meaning-formation operate? What have lawyers tried to do when investing words with particular meanings and challenging established ones? One way to take seriously law's linguistic char­acter is to focus on conceptual change in the international legal world. In this way it might be possible to balance attention to the work of individual legal actors with the institutional and material contexts of their work.^[102] Here history appears as an analysis of how successive generations of lawyers have used authoritative legal concepts to communicate their institutional projects and how these meanings have been challenged and eventually transformed. How was law's conceptual world organised around a centre of key concepts; what did this consolidation mean in terms of the stakes of institutional decision­making and how did that centre eventually dissipate and fragment as other notions and other meanings came to challenge and possibly replace it?

One part of such history might analyse the delimitations that have marked the outer limits and internal divisions of competent law. No legal distinction is more important than the one created once upon a time in Europe between ‘private law' and ‘public law', property and sovereignty. That dichotomy organises everything from the nature of the claims legal subjects have to resources and the administration of political communities to the organisation of law schools. The old (though actually not that old) understanding of international law as an aspect of sovereign behaviour, diplomacy, war and peace is today breaking down.

These are just some examples of the conceptual delimitations that have governed lawyers' understanding of their discipline and their assignments in the world of international institutions. Recent histories that have brought new items into focus have often been inspired by the sense that those limitations have been too narrow, that items important for understanding how power operates in law have been left obscure. Hence the interest in the history of colonial administrations, the work of religious and financial authorities, busi­ness corporations and generally the legal ways of private power. As the scope of the history of international law widens and moves closer to the old ius gentium, it will have a fuller view of the role legal concepts and practices have had in making the world what it is. Law is a language of authority and lawyers are men and women exercising authority. Surely it is not only a technical but a political imperative to bring to light as much of that authority as possible.