1. Introduction
The emergence of a new historical consciousness in the field of international law has had powerful theoretical and methodological implications. Questions regarding the purposes, limits, and meanings of history and its relationship with international law have raised intractable problems of historiography, which continue to generate controversy amongst scholars. One key consequence of this historical turnFootnote 1 has been to dislodge many of the long-standing disciplinary divisions of labour between history and law, prompting legal scholars to open up their canons and methods to sources beyond the customs, doctrines, treaties, and so forth that have traditionally formed the boundaries of international law. Efforts to reframe the history of international law have been met with both ambivalence and controversy. Charges of anachronism, presentism, and instrumentalism levelled by both historians and some international legal scholars, underline the disruptive effects, perceived or otherwise, upon the field.Footnote 2
Taking these anxieties as a generative moment for reflection, this article explores the impact of the historical turn in international law through the lens of its relationship with the sources of international law. Specifically, drawing on the work of Rose Parfitt,Footnote 3 this article considers some of the different ways in which ‘turn to history’ scholars have confronted the methodological and theoretical tensions arising from the central, yet paradoxical, role occupied by the sources doctrine in international law.Footnote 4 As several scholars have underlined, international law’s authoritative reliance on the sources doctrine has important implications for the writing of international legal history, particularly as regards framing the object and method of study.Footnote 5 This central paradox raises the question, captured aptly by Parfitt: ‘is it actually possible to liberate the historiography of international law from the constraints of sources doctrine without transforming it into a historiography of something else?’Footnote 6 We suggest that the anxiety over sources as the basic methodological precepts of the discipline has been a catalyzing element for a radical re-engagement with the canon of international law, one with a significant impact on the field’s existing parameters and doctrinal limits. Within the three streams of critical legal scholarship we explore here, history has become a site of creative engagement for scholars in opening up the discipline to diverse ends, one in which a new doctrinal universe can be created and new issues, sources, subjects, and approaches explored. In this way, the emergence of a new historical consciousness and new historical modes of engagement with the past forms part of broader efforts to reshape and reconceptualize the field of international law for disruptive and democratic ends, as our analysis will show. Yet, the methodological move to open the sources doctrine – in particular in regards to international law’s histories – may also become a distressing site of the opposite.Footnote 7 An important take-away from our analysis is that a ‘turn to history’ carries with it critical potentialities for international law and scholarship but it remains an essential task of such scholarship to identify, examine, and offer critique in relation to the aims pursued and ends met by the many turns to history.
Our article is structured as follows: We begin by briefly setting out the relationship between history, international law and the classic approach to sources. We then consider how the ‘turn to history’ has prompted a major re-evaluation of the methods and purposes of international legal history and its writing, and philosophical questions about the nature of historical truth, causation, and memory. We then move to consider three groups of scholars who by their creative approach to sources in the writing of critical international legal history have sought to use the past as a tactical space in which a new doctrinal universe can be created. While the various schools of historical theory should not be treated as singular or static, they are blurred, internally diverse, and open to debate and disagreement, we have grouped the many forms into three, not altogether distinct, categories: (i) one in which scholars have reached beyond the doctrinally sanctioned sources of international law for their historical source material, removing the disciplinary divisions between international law and intellectual history (the ‘anti-internalist’ turn); (ii) another in which scholars have reframed the temporal hierarchies erected by the sources doctrine, to use international law’s own sources, as critical resources in their own right (the ‘past for the present’ turn); and finally, (iii) a group of scholars who undertake a more radical pluralization of sources aiming to turn its orthodoxy into a heterodoxy for global, legal and political justice purposes (the ‘radical enterprises’ turn). In concluding the article, we suggest that these scholars make radically different uses of history in the current turn to history in international law; that although all three groups of critical scholarship in their own respective ways disrupt and democratize – and thus open up – international law and its conventional sources doctrine distressing examples of similar methodological moves can be seen in reactionary and far-from-critical ‘turns to history’ in contemporary international legal scholarship and practice; and that an important task for critical international legal scholarship thus becomes to critically examine the methodological employment of sources – in particular international law’s histories – in scholarship and practice.
Ours is an account which seeks to diversify the narrative surrounding the causal relationship between history and the ongoing changes to the field of international law, along with the differential practices, techniques, and epistemological foundations behind the history of international law as a discipline, and of the different scholarly motivations of its specialists.Footnote 8 The significance played by, and played on, the conventional sources doctrine in international law for the different ‘turners’ has, we find, hitherto been underestimated in scholarship commenting on the ‘turn to history’. Indeed, while the ‘turn’ has been largely understood as a way to rethink and resituate international law’s histories, or as a way to recalibrate the relationship between law and history, our approach wants to move the take-aways further: by focusing on the methodological aspect of how ‘turners’ have employed the sources doctrine, we argue that the potential creative and reigniting force within ‘the turn’ can be better understood and even, as we suggest, adopted in broader international legal scholarship.
2. The ‘spectre of sources’ in international law and history
History has long formed the cornerstone of international law, pervading, as Thomas Skouteris argues, legal writing ‘so seamlessly that it almost passes unnoticed.’Footnote 9 Yet, as recent academic efforts have underlined, while history has been a crucial buttress to the field of international law, it is also an unstable one. That history forms a focal point in international law can be seen to rest upon two interrelated functions. Matthew Craven has identified the former as history of international law, and the latter as history in international law.Footnote 10 In a normative sense, international law seeks to establish and reinforce its status as a discipline in its central historical narrative, which moors both, past and future developments in a historical lineage. This is motivated by a perceived and actual belief in international law’s unstable claims to legal authority and legitimacy. The other function is a substantive one. Both in practice and in scholarship, history has been instrumental in creating the body of norms and principles of international law, most notably through the formalization of the sources doctrine. The classic doctrine of sources, as it was developed in the nineteenth century, and later codified in Article 38(1) of the ICJ Statute, entrenches international legal discourse and argumentation in the historical and contemporary behaviour, will and interests of states.Footnote 11 The consecration of the sources doctrine during this time was in many ways an exercise in cherry-picking historical source material in the pursuit of new doctrinal boundaries and hierarchies. The doctrine’s inbuilt reliance upon the writings of authoritative publicists or judicial opinion, the precedential value of judicial decisions, the use of past texts and concepts, and a clear preference for describing specific rules and their applications in a genealogical manner, continues to ensure that history remains tightly woven into its fabric and that international legal practitioners are necessarily engaged with the process of historical discourse.
The case of international law history has become so integrated into the discipline through the sources doctrine that to write its history is to define it as an idea. ‘To write a history’, Craven points out, ‘(or more emphatically the history) of international law necessarily involves … setting out in advance the parameters of the discipline (in terms of its subjects and sources, its actors and modes of engagement)’.Footnote 12 This is reflected in the tendency of classical historical accounts to draw primarily on doctrine, judicial decisions, treatises, and the writings of prominent international law practitioners as their historical source material. This ‘ready-made methodology’ of the sources doctrine, as Parfitt has underlined, has particular implications for the practice of writing international legal history. Feed the past into this ‘legal historiographical machine’, as she terms it, and consciously or not, a relatively uniform product is bound to emerge – namely a ‘history of rules developed in the European state system since the sixteenth century which then spread to … the entire globe’.Footnote 13 Indeed, it could be argued that international law’s use of history in many ways sets up a contradiction with the discipline of history proper. As Koskenniemi has similarly underlined, the classical approach to sources ‘produces an identity of the discipline itself … held relatively constant and in which varied and opposing voices are, for the purposes of the narrative itself, silenced or pushed to one side’.Footnote 14 International law’s reliance upon a congratulatory progressive narrative as a source of normative authority, together with its use of concrete readings of doctrines and past state practices as source material, render critical re-engagement with the past problematic and potentially destabilizing. Scholars engaging with the history of the discipline have therefore either shied away from more than perfunctory engagement with the past or tended to close ranks around the patchy retellings of international law, ignoring both the inadequacies and inconsistencies of the mainstream narrative firmly rooted in nineteenth and early twentieth century European history.Footnote 15
This product is therefore not without its criticisms. The most universal criticism is that classical historical accounts of international law are predominantly Eurocentric narratives which tend to ignore the discontinuities in history, adopting a naturalized approach which typically constructs the ‘evolution’ of international law as an enlightenment narrative of progress (or ‘renewal and restatement’ in Berman’s words).Footnote 16 The tendency towards a naturalized approach is also reflected in the deeply state-centric approach manifested in most international legal historical narratives, and its narrow set of (European male) authoritative figures – such as Vitoria, Suárez, Gentili, Grotius, Vattel, and Pufendorf, to the exclusion of a range of different actors and voices. In B. S. Chimni’s formulation, ‘[p]olitical and legal formalism join hands to deny the complex linkages which bind the sociological substratum to law’.Footnote 17 Failing to acknowledge the embeddedness of law in broader social and political practices inhibits our ability to register fully the conflicts and contestations that have naturally accompanied historical development in international law.Footnote 18 Another point of criticism centres on the tendency within mainstream historical retellings to adopt an approach in which theoretical assumptions are generally unacknowledged and implicit. Writers tacitly project a particular vision about the function and nature of international law as an exercise. Consequently, underlying many historical accounts is a particular normative vision of how international law should operate and its role in the international political order. As such, its history remains instrumental in shaping the ‘politics of international law’.Footnote 19 The failure to engage in a self-reflexive enterprise veils the implicit assumptions that form the foundations of mainstream analysis of international legal history, meaning that that such analysis cannot fathom its own role in the creation and perpetuation of a certain vision of international law, and the key role legal analysis plays in the discourse. This is, of course, only a brief introduction to the many strands of critique that have been directed towards historical accounts in international law, but it is nevertheless indicative of a general sense of unease with which many scholars have approached the relationship between history and international law.
3. Three ‘turns to history’ in international legal scholarship
Attempts at diversifying the relatively static historical engagement with international law have grown considerably in the last two decades. New and varied histories of different and previously uncharted areas of international law have prompted a re-examination of the ideas, figures, structures, and theories embedded in the field of international law, taking into account the broader social, political, and intellectual context of legal ideologies and especially areas such as international relations or political theory and philosophy.Footnote 20 While discussions of the catalysts and motivations of scholars in re-evaluating the relationship between international law and history pointed to several factors ranging from the increasing proliferation of international law and governance,Footnote 21 the current prevalence of the discourse on human rightsFootnote 22 and the historical revisiting of mass crimes that are prompting keen debates in international law about memory and history,Footnote 23 the creation of the ‘End of History’ discourse,Footnote 24 to the opening of Cold War era archives and the availability of new historical resources,Footnote 25 one of the key driving forces has undoubtedly been critical scholarship. Drawing on broader trends in critical legal scholarship and its engagement with history as a means of unsettling the axiomatic assumptions underpinning the field,Footnote 26 the field of critical international legal history gained considerable momentum in the early 2000s, giving rise to a rapidly expanding cannon of critical and revisionist historical studies of international law.Footnote 27 These texts moved outside the restrictive boundaries of doctrine, chronicling the indeterminacy and politicization of legal ideas. Most notably, the ‘disenchanting mode of analysis’Footnote 28 offered by the turn to history was used to reveal international law’s imperial past and trace its continuing effects, challenging the grand progressive, Eurocentric and evolutionist narrative of international law. This reinterpretation of international law as ‘an instrument of (Western) expansion and hegemony’ has been particularly central in challenging classical narratives and the forging of new perspectives and historical insights.Footnote 29
These endeavours soon gave rise to historiographical debates over method and the appropriate relationship between history and law in international law, as well as vibrant debates over the implications of the historiographical shift. Anxieties inevitably arose, particularly those related to the burning question of methodology, and the related question of how much these histories actually disrupt or displace.Footnote 30 One central paradox, which emerged in many of the early attempts to diversify the cannon of international legal histories, was the tension posed by the sources doctrine. Despite their best efforts, many of the markers, periodization, and techniques that these histories fell back upon were invariably those of the international lawyer, thus ensuring the scholarship remained bound to the ‘inbuilt historiography’ of the sources doctrine. These limitations were illuminated by the 2012 Oxford Handbook on the History of International Law and its efforts to ‘globalize’ international legal history by opening up new contexts. Many reviewers, while lauding the breadth and scope of the Handbook’s undertaking, nevertheless underlined that the very structure and design of the Handbook – with its Westphalian emphases – meant that it was difficult for contributors to truly displace Europe as the ‘silent referent of historical knowledge’.Footnote 31 ‘The problem with such a liberal-pluralist approach’, Anne-Charlotte Martineau expressed, joining Parfitt in her critique of the Handbook’s methods, was ‘not only that it flattens differences and reduces political projects to commodities, but also that it makes its own politics invisible’.Footnote 32 Achieving the editors’ aims of overcoming Eurocentrism, Martineau contended, would require nothing less than a radical shift in approach: one that needs to reconsider its past not only by including ‘more’ voices, but also by reflecting on broader questions regarding the production of knowledge within the field.
The nature of this task is a formidable one, requiring the displacement of vocabularies, techniques, and understandings that are fundamental to the international legal project. It also raises critical questions about the basic parameters of the field. For, as Koskenniemi has shown, the discrediting charge of apologia always hovers.Footnote 33 Discard the methodology dictated by the classic approach to sources, as Parfitt explains, ‘and the possibility of “challenging Eurocentrism” emerges – but at the risk of dissolving the specifically international legal character of the historical undertaking’.Footnote 34 The question of how and to what extent scholars can dispense with Eurocentric markers and periodization of dominant linear disciplinary narratives without ‘throwing the proverbial baby out with the bathwater’ remains a pressing concern.Footnote 35 To completely reject these categories and vocabularies of preceding histories would be reductive, argues Koskenniemi, and would deprive lawyers of the ‘shared imagination’ provided by these historical associations.Footnote 36 Scholars have therefore sought to navigate this tension in a variety of ways, employing various techniques to expand the methodological and theoretical constraints of the classical relationship between history and international law, while remaining loyal to their understanding of what international law is and the set of ideas, practices, and institutions they deem relevant for its understanding. And this is reflected in many of the strands of scholarship which currently exist in the field of critical international legal history, three of which we have chosen to examine in the following section. In the three ‘turns’ to history we explore, the ‘spectre of sources’ is exorcized in different ways, but with a common goal of deploying the past as a tactical space for critical engagement with the field.Footnote 37 While the success of the endeavour is still the subject of debate, we argue that these flourishing contributions have provided regeneration and re-enchantment within the field of international law, expanding its disciplinary imagination.
3.1 Expanding the archive: The ‘anti-internalist’ turn
Dominant realist and idealist approaches to writing international legal history had led to the development of a history predominantly instrumentalized by its creators for the purposes of lending legitimacy and normative gravitas to the discipline.Footnote 38 Drawing on the sociology of knowledge,Footnote 39 scholars have therefore sought to challenge these celebratory histories by providing complex and contextualized histories of the discipline, moving beyond its doctrinal boundaries and hierarchies. Posing the question: where can the international be said to lie? these scholars have sought to integrate structural concerns – of race, gender, empire, and nation – into their accounts, treating existing historical accounts as replications of a closed set of argumentative positions.Footnote 40 The central concern of what we term the ‘anti-internalist turn’Footnote 41 is to go beyond what Jouannet and Peters call the ‘methodological primacy of technicism (doctrinalism) and pragmatism in international legal scholarship’,Footnote 42 in order to extricate the history of the discipline from the discipline itself, treating it as an object of study in its own right. ‘Anti-internalist’ scholars manifest a resistance to the inbuilt historiography and image of international law which the conventional sources doctrine is designed to construct, underlining that the sources doctrine allows the discipline to distort the past in order to shore up a predetermined doctrinal pattern, ultimately centred on providing authoritative statements about the content of international law. Instead, within the ‘anti-internalist turn’ we find trajectories which ‘unsettle the familiar strategies that we use to tame the past in order to normalize the present’.Footnote 43 As a bulwark against the tendency towards pragmatism and functionalism the ‘anti-internalists’ appeal to many of the generic conventions of history writing, which they find to be lacking in legal historical narratives generally.Footnote 44 The core of criticism is centred on the misuse of the past for the purposes of sustaining an argumentative position.Footnote 45
Refusing to accept smooth or evolutionary histories, ‘anti-internalists’ dwell on ambiguity and ambivalence. This is evident in the work of Nathaniel Berman who has rejected the account of international legal history presented as an ever-advancing dialectic of restatement and renewal.Footnote 46 Instead, he advances a vision of international legal history ‘as pockmarked by a series of catastrophes and mutations, as rocked by the countless forms of colonial conquest and anti-colonial resistance’.Footnote 47 In place of a narrative of continuity, progress and inclusion, and drawing on international law’s received boundaries, locating the action in the periphery (minorities, the colonies) and ‘outside’, Berman envisages a history marked by change, regress and exclusion. He raises episodes that have been excluded from mainstream accounts (such as the governance architecture of the Saar, Upper Silesia) and examines the work of international lawyers and other political actors who have mostly been hidden from view.Footnote 48 Berman engages heterogeneous vignettes of international legal history to construct an internationalist edifice both to ‘legitimize and subvert’ its elements. The vision of international law he advances is one that is ‘normatively impure, culturally heterogeneous, and historically contingent’.Footnote 49 This is not, he argues, a matter of anxiety or despair for it is precisely because of ‘international law’s lack of coherence’ and ‘the instability of its transitory configurations of rules and players’, that he is able to identify it as ‘a hopeful enterprise’.Footnote 50
Challenging the received wisdom of the evolutionary narrative to reveal previously unseen events, actors, and points of tension is also present in the work of David Kennedy and Karen Knop. Like many other scholars in the ‘anti-internalist turn’ they have moved beyond the state as the centre of analysis. Kennedy uncovers the forgotten origins of the League of Nations’ idea in women’s peace movements and shows how those movements were excluded from the scene by the end of the First World War.Footnote 51 Knop’s examination of the history of self-determination has likewise uncovered the role of women, inhabitants of colonial territories, indigenous peoples, and other newly arrived actors in the development of the theory and practice of self-determination.Footnote 52 Her case studies reveal the ‘blind spots’ excluded from the dominant historical narrative of self-determination and underline the different interpretive and normative visions which exist alongside existing doctrinal accounts. Both Knop and Kennedy critique international lawyers’ conventional readings of the past – and particularly the assumption that ideas such as sovereignty, jurisdiction or custom can be perceived as historically stable notions and hence, provide a basis for transhistorical analysis. As Kennedy observes:
The rhetorical gestures and motives of scholars and statesmen are extremely hard to compare across time as applications of similar ideas or contributions to a single institutional project. Moreover, it is unlikely that historical actors were primarily concerned, or even noticed, the relationship between their actions and a transcendent historical development of something which would later come to be summarized as “international law”. The complexity of the historical record – different ideas about what “law” was, different attitudes about “sovereignty” and “war” and “right” – tend to disappear when one looks at historical events for evidence of what “the law” about some transhistorical phenomenon like “conquest” or “sovereign immunity” has been.Footnote 53
Echoing Quentin Skinner’s criticism of historians’ tendency ‘to search for approximations to the ideal type (that) yields a form of non-history which is almost entirely given over to pointing out earlier “anticipations” of later doctrines, and to crediting each writer in terms of this clairvoyance’, Kennedy and Knop caution against a historical archaeology that supposes the pre-existence of the law being examined.Footnote 54
In their attempts to underline that the categories, concepts, and practices that appear to us most natural are historically produced and that this history is one of contingency, the ‘anti-internalist turn’ draws upon Skinner’s and his ‘contextualist school’s’ episodic approach to the history of ideas and their insistence on the need to understand political, philosophical, and legal ideas as created in particular, social and cultural contexts.Footnote 55 They are, therefore, wary of functionalist and pragmatic approaches to history (for example, seeking to determine the rules of customary law) which considers historical material sources for insight or rule of contemporaneous relevance. For the ‘anti-internalist’ then, the challenge for the scholar approaching the history of international law is to escape the inbuilt legal ‘historiographic machine’ and its tendency towards instrumentalism. As Lesaffer argues:
Often international legal historians consider doctrine to be convenient shorthand for what the law of nations of a certain period was. They act as if the writings of the “classics of international law” offer a reliable or even authoritative statement of the then applicable law. They thus reduce the law of nations to what some influential authors said it was.Footnote 56
By widening the scope of historic enquiry, the international legal histories that the ‘anti-internalist’ scholars attempt to construct are thus highly contextual, situating the decisions, rules, incidents, participants, and institutions of international law within the particular confines of the times in which they occurred and, in doing so, looking to a wide range of texts and participants for evidence. These histories are focused upon the ways in which international legal developments are embedded in their specific places and moments, demonstrating the contingency of events, exploring how and why decisions took the shape that they did, and explicating when and why certain ideas and practices took hold (and others did not). For these scholars the appeal of international law’s historical turn, as Koskenniemi has noted, is the chance to craft ‘better narratives’Footnote 57 and counter-narratives. In this context, new insights have been generated on various aspects of international legal identity and society, and the role of the image in international legal work.Footnote 58
An additional characteristic of this scholarship is a greater degree of interdisciplinarity when approaching the history of international law which blends legal and international relations theory and its historical discourse, legal history and the history of ideas and political thought.Footnote 59 What Berman in particular advocates for is a reconceptualization of traditional pragmatism and the adoption of a plurality of approaches. His scholarship fuses a range of perspectives encapsulating philosophy, geography, sociology and economics. The effect is, as David Armitage states, a symbiosis of ‘turns – linguistic, historiographical, transnational and cultural’.Footnote 60 Opening up the historical narrative surrounding international law and escaping the echo chamber of sources is, in the words of Thomas Duve:
To envision a legal history that is able to establish new perspectives, either through opening for different analytical concepts or by fusing them with the [sic] own tradition, by tracing worldwide entanglements or by designing comparative frameworks which can shed light on unexpected parallel historical evolutions.Footnote 61
3.2 Juridical thinking: Dissolving the distinction between past and present
A second strand of scholarship frames their engagement with history around the question of ‘how do ideas move through time?’. Here, a particular understanding of anachronism is used to disrupt the teleology of legal sources.Footnote 62 In their respective turns to history, Koskenniemi and Orford begin at and make the present their ultimate point of arrival. Both, having driven ‘the turn’ through early and continuous interventions and practices, turned to history through a diagnosis of the present state of international law as in ‘crisis’, allowing them to seek remedy through reordering the international legal project. The past becomes, in this strand of scholarship, a readily available source for the present, even where contemporary lawyers think that contemporary sources already provide the answer. In different ways, both pioneered the turn to history through their writings as well as in availing important platforms for emerging and established scholars within the field in heading large research programs and publication projects dedicated to international law and history.Footnote 63 Theirs is, as Kate Purcell puts it, a ‘juridical’ approach that largely remains within the ambit of the conventional sources doctrine, where such materials are treated as sources ‘rather than questioning the form and content of the archive itself’.Footnote 64 Instead, the past/present distinction is dissolved so as to invite anachronism into international legal reasoning and normative resources from the past as innovation in the present.Footnote 65 Yet, the established hierarchy between authoritative sources embedded in the conventional doctrine recedes to the background.Footnote 66 As a result, international law is reworked in the present by recourse to the past, circumventing competing doctrinal sources (other than history and the particular histories pursued within their respective scholarships). The grammar of the sources doctrine is, thus, in the ‘past for the present’ turn, employed to conduct a conversation with international law and lawyers in a non-conformist way, inviting a more fluid and historical understanding of international law as a present practice.
In distinguishing legal from ‘purely’ historical modes of engagement with the past, Orford argues that ‘[t]he self-imposed task of today’s contextualist historians is to think about concepts in their proper time and place’, while ‘the task of international lawyers is to think about how concepts move across time and space’.Footnote 67 Orford defines her work as ‘informed’Footnote 68 by the contextualists, but emphasizes that in order to conduct ‘a legal rather than a historical study’Footnote 69 she must depart from Skinner’s ‘taboo’ on anachronistic readings of concepts over time. Such readings are not necessarily, Orford insists, a lack of schooling in historical method: it is a sign of schooling in the common law tradition and international legal methodology on ‘how to make a plausible argument about why a particular case should be treated as a binding precedent, or why it should be distinguished as having no bearing on the precedent’.Footnote 70 In contrast to the general historian performing contextual readings – and in contrast to the ‘anti-internalist’ and general legal historian’s concern with the past in its own right – lawyers are trained to recognize the ‘potential source of obligation in the present’ which ‘concepts or arguments from the past’ may have.Footnote 71 When Orford announces that ‘international legal scholarship is necessarily anachronistic because the operation of modern law is not governed solely by a chronological sense of time in which events and texts are confined to their proper place in a historical linear progression from then to now’,Footnote 72 she reminds general and legal historians of international law that this particular brand of law comes with its own sources doctrine in which history – not the least in terms of precedents and practice (including such which have been largely forgotten, ignored, or considered obsolete) – forms part of the current law.
While seemingly unradical – or, rather, doctrinal – Orford’s turn to the ‘past for the present’ in international law (implicitly) operates with a notion of history that becomes in a certain way a reminder of Berman’s scholarship and interdisciplinarity: Orford has always drawn on history in her work. However, shortly after the turn of the millennia a shift occurred in which her earlier explicit ‘misreadings’ of international law ‘in ways that such texts were generically and institutionally never meant to be read’ – framing her enquiries through feminist and postcolonial theoriesFootnote 73 – were continued by a mainly historical and a much more conventional international legal terminology. Her method in conducting research has, however, mostly remained the same.Footnote 74 Central to her ‘turn to history’ is not a rejuvenation of just any particular history in the present but rather a critically informed history that brings to the fore international law as pivotal responses to contemporary crises, death, suffering, and global inequality: an ethos she shares with many of the ‘radical enterprise’ turners, but the radical ends which she does not in such explicit ways ascribe to in her own ‘turn’.
Koskenniemi, in contrast, has positioned his project as a history. Yet, he is cautious to deem the science of history any more ‘objective’ than that of law: both come with ‘projects’ and ‘normative commitments’.Footnote 75 Instead, he aims to ‘counter more celebratory histories of international law’ by providing a history of the discipline which weaves together its intellectual, sociological and political past. In particular, his almost biographical readings of key figures in the Western history of international jurisprudence has provided a rich history of international legal thought.Footnote 76 The Gentle Civilizer Footnote 77 is, as Orford puts it, seen as a ‘milestone’ in his work.Footnote 78 It focuses on the ‘history of the self-understanding and sensibility of international lawyers’Footnote 79 and flows in part from Koskenniemi’s sensibility as a practicing international lawyer – working in ‘a broader range of political, social, and cultural developments’.Footnote 80 An often overlooked biographical feature of Koskenniemi’s work is his substantial experience in the Finnish diplomatic service. Koskenniemi’s turn to history, in contrast to historians and international lawyers of the contextualist school, becomes an insider’s historicization of his own field of practice and scholarship. The ‘insider’ distinction matters as the disciplining aspects set Koskenniemi’s turn to history apart from general history and general international legal scholarship.
Koskenniemi, and the ‘turn’ he represents, follows conventional methods and writings on history, including setting historical time-periods apart for contextual scrutiny.Footnote 81 He performs careful readings of primary sources from traditional historical archives – often texts (already) considered canonical in the Western international legal tradition. He is thus often, mistakenly, regarded as an ‘anti-internalist’. Yet, he is quick to emphasize where his commitment – or as he puts it: ‘obsession’ – lies: ‘With the Now. With Ourselves’,Footnote 82 affirming his position as an international legal scholar concerned with the present, turning to history for present ends. Koskenniemi is, as he has recently put it, ‘trying to construct a persuasive argument from the bits and pieces of authoritative language lying about in the appropriate professional context’.Footnote 83 This is easy enough for a practicing international lawyer to identify with: Koskenniemi’s ‘obsession’ has never been about the past, but with availing the international legal arguments pursued by lawyers, scholastics and theologians of their respective pasts to the international legal scholarship of the present.
In describing Koskenniemi’s position, Kemmerer concludes that he ‘sympathizes with the turn to contextual readings of international law’, yet ‘he is careful to draw some boundaries – not the least because the reduction of a historical narrative to context creates an artificial border between past and present’.Footnote 84 Like Orford, Koskenniemi is an optimistic reader of the potential of international law.Footnote 85 This sets his turn to history apart from many of the critical international legal historical projects, as well as from the many historical projects working with international law – the latter of which takes less of an interest in the critical potential of international law today. Each in their own way, Koskenniemi and Orford turned to history with an ethos to make history part of contemporary sources for the international legal scholar and practitioner looking to (re)construct an international legal argument in the present and for the present. For both, crisis and fragmentation have been a productive way of describing the current state of international law; urging scholars to revisit the history of international law in order to rethink it in light of its current challenges.
The promise of turning to history as a response to crisis in international law has turned out to be a rewriting project of contemporary international law for Orford and Koskenniemi. It is not necessarily stabilizing the field – which would be an order-conserving response to ‘crisis’ – but rather, evolving international law in the direction that both envision as a ‘better’ law for contemporary purposes. Instead, the ‘past for the present’ juridical turn disrupts well-trodden paths of conventional international scholarship urging for ‘new answers’ to ‘new questions’ by showing that even if the questions are new (which they often enough are not), the past, rather than the present takes on international law, holds a more convincing diagnosis for our present times. Yet, even if their diagnosis is one of the current crises in international law and beyond, the international legal arguments delivered through the ‘past for the present’ juridical turn stay within the logics of that which the turners identify as producing international law’s ‘crisis’. As Purcell cautions:
Writing history in a juridical mode – for example, by referring exclusively or primarily to materials that are also considered ‘sources’ of international law and, indeed, treating such materials as sources rather than questioning the form and content of the archive itself reproducing the ism of international legal reasoning; a variety of practices as historically continuous (if suppressed) forms of lawful effect a degree of change in present international law. Yet scholarship taking this form also cuts itself off from the greater critical potential of history in connection with international law.Footnote 86
This particular brand of the turn to history may thus be quite successful in exploring the critical potential of working within the ambit of the conventional sources doctrine in international law, disrupting and dissolving its past/present boundaries only quite gently. Its potential success in communicating with the larger field of conventional scholarship and international legal practitioners resides in that balance. However, the specific critical potential which comes with history may be underexplored. Moreover, while Orford presents anachronism as already part of the method of international law it is – if we are to follow the conventional sources doctrine – only so to a certain degree: obsolete conventions and court cases remain obsolete, however useful they would be for contemporary purposes. What Orford seems to describe, though, is how normativity can be re-inscribed to historical text through putting them into contemporary use in international legal practice and scholarship: a disruptive and possible distressing enterprise that may promise a ‘better’ international law, but which may equally well be pursued, in practice, for other ends.Footnote 87 In turning to history, ‘the past for the present’ juridical turners have (re)discovered a method in which to substantiate scholarly claims and legal argument already set by their critical or otherwise commitments and ethos. Perhaps – as recent criticism indicates – the trajectory into history has distracted one or two critical scholars from providing productive and succinct answers to pressing contemporary legal and political problems.Footnote 88 The analyses put forward through the ‘past for the-present’ juridical turn – spearheaded by Orford and Koskenniemi’s work – remain sharp, insightful, and refreshing. However, it remains to be shown how the diagnosis of ‘crisis’ professed by this scholarship is supposed to cure us. One take-away from our analysis of the ‘past for the present’ juridical turn to history is, thus, that although the turn disrupts the teleology of progression in international law and scholarship it risks leaving the international lawyer, who is keen to see the ‘cure’ coming, in want of anything but a historically more informed state of despair, distress, and disillusion. Maybe, but maybe just so, this state-of-mind of professional and scholarly anxiety is where productive answers and actions are (yet) to be found.
3.3 Radical enterprises: Dissolving the here/there and law/non-law distinctions
A substantial part of the general ‘turn to history’ in international law is performed by critical international legal scholars,Footnote 89 who, as Skouteris notes, deploy history as a ‘technique of criticism and as part of a larger intellectual project of “reinventing” international law’; these are ‘radical enterprises’ taking on a nominally conservative and order-conserving genre of international law.Footnote 90 The critical agenda brings the ‘radical’ turners together or, as Koskenniemi puts it: ‘such studies differ in many ways from older histories of the field that were either more neutral in conception or associated the growth of international law with peace and enlightenment’.Footnote 91 Within this turn, Genevieve Painter identifies:
two threads [that] hold together the field’s varying methodological approaches: first, a rough consensus about the role of critique in a political project to unseat a teleological, triumphalist narrative of international law’s past, and second, a lively debate on the proper “context” for understanding international legal history.Footnote 92
This turn to history offers – whether an explicit aim or not – a challenge to the grammar of international law as embodied in the conventional sources doctrine. In pursuing contextual readings – akin to how the contextualists employ history, but dissimilar in terms of the explicitly critical (at times revolutionary) aims – the sources availed for rethinking and reordering international law and its history are infinite. The potential international laws (and its histories) are similarly infinite, and yet, caught in an imperialist trajectory, unless the methodological choice of the international lawyer disrupts the normative baggage of the conventional approach to history and its use of the sources doctrine. Antony Anghie’s contribution to the Third World Approaches to International Law (TWAIL) movement has been pivotal to the ‘radical enterprises’ turn.Footnote 93 Contemporary TWAILers turn to history in order to revisit contemporary unequal global relations governed by international law, tracing imperialist ideology, Eurocentric ‘universalism’, and inequality as ingrained in contemporary international legal scholarship and practice.Footnote 94 What is at stake is not only rewriting history, but also, as Vasuki Nesiah puts it, ‘the particular and contested backstories with specific political stakes’ through which international law’s histories are told.Footnote 95 The sources employed by TWAILers are, in part, conventional: international treaties, canonical texts, and ICJ case law. The difference between these and conventional scholarships resides in the interpretation of sources and the purpose of analysis: TWAIL histories, more often than not, move towards interdisciplinarity.
TWAIL and related enquiries into international law’s imperial past and efforts to trace its continuing effects – the legacies of colonialism in particular – have unsettled traditional accounts of international law in terms of both content and approach. Responding to Chimni’s call in ‘Customary International Law: A Third World Perspective’Footnote 96 of an agenda aimed at fostering ‘a counter repertoire of custom that can democratize and pluralize the sources currently feeding CIL [Customary International Law]’, Nesiah suggests ‘that a turn to history will reveal anti-imperial/anti-capitalist international law-relevant norms and practices that are already hidden in plain sight’.Footnote 97 The ‘radical enterprises’’ turn to history in similar ways tend to emphasize, not unlike ‘purist’ historians and international legal history scholars, a historical method over conventional international legal sources doctrine.Footnote 98 The latter, Parfitt argues, necessarily reproduces Eurocentric histories of international law, and is why a critical (re)imagination of international law must abandon the conventional sources doctrine for wider contextual readings.Footnote 99
Parfitt, together with Madelaine Chiam, Luis Eslava, Genevieve Painter, and Charlotte Peevers have set out to showcase what it might mean to purposefully abandon the conventional sources doctrine, writing new histories in international law, focusing on ‘other’ sources, or in their case, artefacts.Footnote 100 Taking their cue from Koskenniemi, they ask what international law really is, subjecting its history to a reading that is neither faithful to international legal sources doctrine nor to traditional historiographical methods – or to anthropological and other conventional methods. They profess to perform an anthropologically inspired turn to historiographical sources, understanding ‘international law as archive’, in order to ‘question the conventional archive of international law’.Footnote 101 In contrast to scholars with a more explicitly contextualist turn to history (the ‘anti-internalists’ along with mainstream legal historians and general historians), the critical potential of expanding the sources invoked in order to understand international law (past and present) is more fully explored and the aim often openly set within the framework of postcolonial theory, feminist critique, and critical race theory. Emerging strands of Marxist scholarship have played a particularly influential role in expanding the radical potential of history in international law.Footnote 102 This scholarship redeploys history to foreground the structural connection between capitalism and international law,Footnote 103 tracing the development of modern inter-state relations as dominated by Western powers and the capitalist logic of the ‘transnational capitalist classes’, to reveal the ideological bankruptcy of the belief that international law is ahistorical, apolitical, and neutral.Footnote 104
Much like Orford, many ‘radical enterprise’ turners are set on tracing concepts and imperial residues in international law over time and collapsing the past/present distinction. Some do this by collapsing the geographical structural biases of Eurocentrism in international law by bringing voices from the ‘periphery’ into disruptive conversation with conventional narratives on the history of international law, potentially opening up for considering ‘other’ source and materials.Footnote 105 This critical turn is moving towards a global international legal history, expanding the archives geographically from which to draw a global history. The methodology is drawing on (legal) historians, yet far from aiming for a more ‘objective’ reading of the past, for the purpose of better understanding the past, the point is to open up the narrative of present day international law, which is closely associated with the ethos of ‘dissolving the past/present’ turners in international law.
Other scholars in this turn to history in international law, like Arnulf Becker-Lorca who repositions semi-peripheral international lawyers’ interventions into (what ought to, in Becker-Lorca’s account be) a general and mainstream international law and history, specifically call for a re-reading of conventional international legal sources and material. Becker-Lorca’s scholarship is, in a remarkable turn, reinforcing the conventional sources doctrine in international law for explicit critical ends. The difference between his and conventional scholarships is the re-evaluation of international legal sources that has hitherto been dismissed from the agenda of canonical narratives on the history of international law and present day international legal practice, either because they do not fit with the notion of ‘progression’ or because they are considered ‘minor’ or ‘other’ histories in the general trajectory of international law.Footnote 106 An emphasis in Becker-Lorca’s work is to show how mainstream narratives on international law are ideologically and geographically biased: the Eurocentrism is, he argues, neither historically correct nor does it fit with conventional international legal sources doctrine if we care to take into account all relevant sources that the sources doctrine avails us. Conversing well with conventional international legal scholarship through the recourse to a shared commitment to international law’s conventional sources doctrine, Becker-Lorca’s scholarship has also been well received outside of critically inclined scholarly circles.Footnote 107
An often-voiced critique directed at TWAILers is that they neither do history ‘proper’ because of the explicit critical and theoretical engagements in which the past/present distinction is collapsed,Footnote 108 nor is the scholarship received as international law ‘proper’ because the historically and theoretically infused methods and analysis make use of sources and arrives at conclusions considered too unconventional. What becomes apparent when considering the different explicitly critical and ‘radical’ turns to history in international law is that the methodological employment of sources and the way in which the conventional sources doctrine in international law is made use of is both strategical and eclectic. The sources doctrine is employed as either a strategy of arguing and being heard in more mainstream debates on international law or as a means to disrupt conventional narrations and understandings of both the past and the present conditions of international law. The critical international legal histories emerging from this turn both widens and constricts the disciplinary limits of sources available to the international legal scholar, challenging the conventional sources doctrine on many levels by inviting plurality and at times excepting, but simultaneously dismantling, the hierarchy of sources. Both content and hierarchy of the conventional sources doctrine are, consequently, put into question. As a result, what international law is and can be emerges as almost infinite: it all depends on which sources you invoke and how you interpret them. As Parfitt notes, ‘those who wish to look critically at international law and its material effects cannot do so without reaching beyond sources doctrine, which in turn puts at risk their claim that what they are “doing” is indeed “international law”’.Footnote 109
As old and established hierarchies of sources and disciplinary boundaries are dismantled, there is greater ‘democratization’ in terms of sources, voices, and methodologies. A visionary ‘other’ law can be, and often is, imagined – one which is not building on international law as a ‘Eurocentric’ knowledge-production.Footnote 110 As scholars turn further away from the conventional sources doctrine, mainstream scholars and practitioners find it increasingly difficult to follow. The difficulty, however, is not particular to the ‘radical’ turners. Instead, this is the trademark of a methodological diffusion of the conventional sources doctrine, in particular the diffusion of its historical archive: coinciding in time with the broader and critically bent scholarly ‘turn to history’, practitioners and scholars of a wholly different strand than the one featured in this article have been engaging in a reactionary turn to history. Their methodologies in writing histories and working with archives share significant features with the methodologies employed by ‘radical’ turners, leaving both ‘radicals’ and ‘reactionaries’ in the same boat: international legal arguments and analyses based on sources that mainstream legal scholarship does not recognize as authoritative casts doubt not only over the arguments, but also over the scholars professing them. After all, it is not the sources that are unrecognizable to mainstream international legal scholars, but the law that flows from radical as well as reactionary endeavours and ends.
4. Conclusions
To say that international law has always sought to establish and reinforce its status as a discipline in its central historical narrative, is to state the obvious. History (and historiography) offers itself, as it were, as a mode of rethinking or reinforcing international law’s normative authority – both in the past and in the present – and it does so for a variety of ends. For those wishing to radically reconceptualize, reorder or disrupt the discipline, then history marks the entry point for this process; a space in which to reveal the blind spots, biases and, of course, hidden emancipatory (or otherwise) potentials. In this sense, the turn to history in international law is not a return to the past, but a detour through the past, to use Walter Benjamin’s terminology, in order to think about the present.
The historical engagement that centres on the scholarship forming the base of our analysis in this article becomes a form of political re-enchantment, one where the overlaps, contradictions, and complexities that underline the formation of international law and its contemporary role can be revealed. The transformative potential of expanding beyond the disciplinary boundaries of the sources doctrine, we have argued, works in different ways to disrupt universalizing narratives of historical truth that dominant doctrinal retellings of international law’s past. The point of revisiting the past, from this perspective, is, as Benjamin asserts, not ‘to satisfy an imagined desire for an improved understanding of the past’, but rather to create, in an explicitly political way, ‘new, historical objects or dialectical images that join together what may be quite distinct phenomena, whose significance can emerge only posthumously or retrospectively, in a relationship with the now that has apprehended their significance’.Footnote 111
In considering three different kinds of turns to history in contemporary critical international legal scholarship, we do not claim to have provided an all-purposes ‘taxonomy’ of the field. Rather, analysing the scholarship of Nathaniel Berman, David Kennedy, and Karen Knop who, together with other scholars, have sought to counter functionalist and celebratory histories of international law by providing a more complex and nuanced history of the discipline, moving beyond doctrinal boundaries and hierarchies, as an ‘anti-internalist’ turn to history in international law, has enabled us to pin down why it is that scholars gravitating towards history ‘proper’ in international law seem, at least at times, to speak more of anything and everything rather than international law: the crux is that once it goes beyond the given sources of the conventional sources doctrine, the disciplinary language is no longer that of international law as mainstream scholars and practitioners (care to) know it. This makes conversations between scholarship of this brand of the turn to history in international law and that of mainstream scholarship uneasy or, at worst, non-existent. A similar reordering of disciplinary priorities, prefaced upon the expansion of temporal and spatial limits, takes places in the work of scholars adhering to the ‘past for the present’ turn to international legal history. Exposing the deep method political tensions that underpin the historiographical turn, the scholarship of Anne Orford and Martti Koskinniemi and others engage a ‘necessarily’ anachronistic dimension in their historical accounts, as a way of thinking juridically about ‘crisis’ and the international legal argument in the present. While this approach comes with a nominal adherence to the sources doctrine (less so for Koskenniemi than for Orford), it nevertheless diffuses the sources’ authoritative hold, by emphasizing history and normative innovation over doctrinal hierarchies, and ‘bring[ing] legal principles down from the conceptual heaven and into a real world where agents make claims and counterclaims, advancing some agendas, opposing others’.Footnote 112 While (at least implicitly) promising something beyond ‘crisis’ – in best case a ‘better’ international law – this turn to history has yet to deliver any ‘cure’ if it is not simply supposed to leave the international scholar and practitioner in a historically more informed state of despair, distress, and disillusion. Similarly, ‘radical enterprises’ in the turn to history, including TWAIL and Marxist scholarship by B. S. Chimni, Vasuki Nesiah, and others, have challenged the formal authority of international law by blurring the boundaries between international law and politics, destabilizing the historiographies upon which mainstream international law depends. Bringing to the fore the need to go beyond the conventional sources doctrine – indeed, to diffuse its archive – in order to escape its ingrained Eurocentrism, Rose Parfitt, with others, has reinvented international law’s archive by including artefacts, stories, and figures. The result is a reconfigured international law (often) far from mainstream scholarship – sometimes too far to be recognized by and as international law and scholarship – offering new and promising ways of thinking about international law’s past, present, and potential.
While scholars make radically different uses of history in their respective turns to history in international law, what brings the critical international legal scholarships analysed in this article together is a strateg use of sources and the centrality played – explicitly or implicitly – by the conventional sources doctrine in those turns. The three groups of critical scholarship disrupt and democratize – and thus open up – international law and its conventional sources doctrine in ways that invite thinking about international law in new (or, perhaps, old) ways. Yet, contemporary examples of turns to wholly other histories through reactionary aims resulting in unjust ends should act as a warning of how disrupting and opening up the conventional sources doctrine – especially in terms of the histories invoked – is not a universal cure to crises, imperialism or injustice: it can also (and does) work the other way around. A key task for critical international legal scholarship, both part of the turn and otherwise, is thus to critically examine the methodological employment of sources and histories employed in international legal scholarship and practice. On a more optimistic note, it must also be noted that while a turn to history may not save us – or international law, or anything but the global actors of academic publishing looking for ever expanding markets of new ‘fields’ and ‘turns’ – the methodological work done by critical international legal scholars within the many turns to history is impressive and inspiring. Used in a strateg way, and by focusing on the conventional sources doctrine, the way in which ‘history’ (whatever that is or can be) has been employed in order to rethink and rewrite international law could serve as a template for a new attention to sources beyond an engagement specifically within the ‘turn’ or history. A call for critical international scholarship to turn to history beyond the establishment of a new field or genre of legal scholarship is thus a pressing one. By focusing on the methodological aspect of how ‘turners’ have hitherto employed the sources doctrine, the potential creative and reigniting force within ‘the turn’ can be better understood and adopted in international legal scholarship broadly.
