2.1. Ambivalence

The first historiographically-sensitive works started with texts and lives as their principal archives.

Kennedy sought to contextualize early canonical works – Vitoria, Suarez, Gentili and Grotius – by asking, simply, ‘what would one have to think to write this?’ and trying to find historical alternatives to traditional legal problems that have neither been solved nor abandoned.Footnote ⁵ Rather than charting the development of doctrine, trying to find continuities or differences with today’s writings, constructing a social history of these writers, or even trying to show that they actually held some set of views or other, Kennedy’s goal there was simply the ‘description of texts’.Footnote ⁶ What results is a detailed reconstruction of the works of four major jurists that Kennedy argues reveals their coherence and difference from twentieth century international law (contra the readings of those twentieth century ‘modern’ international lawyers). We might see Kennedy’s work now as itself a ‘modern’ form of chronicling, reliant on another (literary) methodology to cast new light on old materials by asking carefully how they speak to us today. Kennedy’s other works took up origin stories – of the League of Nations and later of the imagined nineteenth century – using the ideas of break, movement and repetition to make sense of how those stories spoke to the discipline in the 1990s.Footnote ⁷

Koskenniemi’s Gentle Civilizer significantly advanced this way of approaching texts and lives, based on a more direct engagement with historiography. While Koskenniemi recognized the importance of historiography, he remained cautious about not treating it as rigid or settled but just as ‘riddled with methodological controversy’ as sociology, philosophy or law.Footnote ⁸ This grounded some suggestive historiographical commitments that are not articulated in full at the outset. Koskenniemi offered small-scale social, intellectual or cultural inquiries, or a ‘great man’ theory writ relatively small, confined to the circle of international lawyers of the late nineteenth and early twentieth centuries. To avoid suggesting that these ‘great minds’ of the era were the only important factors, Koskenniemi matched them with contextual and epochal elements to produce a narrative history of international lawyering and its ideas, which he dubbed an ‘experimental … non-rigorous’ approach to history.Footnote ⁹ This method aimed to ‘bring international law down’ from precisely those ‘epochal or conceptual abstractions’ present in the earlier chronicles and hagiographies, and looked to varied, developing practices of international law to avoid singular views about the shape of the era. These practitioner-subjects were described ‘as actors in particular social dramas’ that played out on the ‘terrain of fear and ambition, fantasy and desire, conflict and utopia’ that was international law; where they expressed ‘occasionally brilliant insights and (perhaps more frequently) astonishing blindness, the paradoxes of their thought, their intellectual and emotional courage, [and] betrayals and self-betrayals’.Footnote ¹⁰ The history was drama, specifically tragedy, which we knew was filled with noble yet doomed aspirations. For most readers, this mix of doctrine and drama did not lead to hagiographies and panegyrics, despite the obvious risks.

The second pair of milestones engaged with historiographical questions of structure, perspective, and wider contexts.

Anghie’s work can be read as revitalizing the non-European histories of the 1960s and 1970s, though in a much more powerful, direct way that explored colonialism and imperialism as structural themes intertwined with the histories of international law and offered more than just different or non-European narratives.Footnote ¹¹ Anghie’s historiographical sensitivities are refracted through the works of post colonial scholars – Edward Said, Gayatri Spivak, Homi Bhabha, David Scott and Dipesh Chakrabarty – whose influence he explicitly acknowledges.Footnote ¹² Building from their pivotal contributions that challenged Eurocentrism among historians,Footnote ¹³ Anghie urged us to look to histories that were ‘alternative’ to the narratives, concepts and ‘controlling structures’ of conventional histories: histories of resistance that take up the perspective of the peoples subjected to international law, and which are ‘sensitive’ to the tendency to assimilate those stories into conventional ones.Footnote ¹⁴

Simpson described his approach to exploring unequal sovereigns and international ‘outlawry’ as ‘theoretical intellectual history with a point’.Footnote ¹⁵ This was an episodic history of the roles played by the idea of sovereign equality in organizing the global legal order that drew heavily on European diplomatic history. The episodic approach allowed Simpson to outline the occurrence and recurrence of legalized hegemony at different places and times, each providing a new angle on the enduring theme of hierarchies of states.Footnote ¹⁶ Simpson and Anghie linked their episodes through large organizing themes, charting the gaps and elisions in place of a continuous narrative. Like the first strain, they began with the writings and actions of international lawyers. But they also sought to ultimately address and reveal just as much about the wider contexts, institutions and structures beyond the discipline that also shaped history and law.

About a decade ago, Matthew Craven wrote that for Simpson international legal history is ‘understood primarily as a rhetoric’ about various figures – Great Powers, outlaw states, colonizers, pirates – not merely as background to today’s doctrinal questions ‘but rather a past marked by ambiguity and ambivalence, rhetorical excess and definitional undecidability, that finds continuing expression in contemporary legal and political discourse’.Footnote ¹⁷ I take up this characterization as a reflection of the decline in ambivalence in the way that I have used it so far: that by 2007, at the latest, history and historiography were a thoroughly important and inescapable part of understanding international law; that this past was now radically open for exploration; and that equally our methods for exploring it could and must be more creative. International legal historiography now embraced ambiguity, taking doctrine not as science but as rhetoric against the background of the indeterminacy of legal ideas, and sought the traces of the past in today’s arguments.

None of the works discussed above is ambivalent about historiography. Each author recognized a need to raise and address these questions, and to articulate and defend some theory and method, even if it is modestly generic (Kennedy), ‘non-rigorous’ (Koskenniemi), aiming to have ‘a point’ (Simpson), or broadly reliant on and generally inspired by a large tradition that is noted but lies beneath the work (Anghie). With them we encounter fractured timelines, murky and contested narratives, figures and projects with multiple and unclear roles, intentions, and culpabilities, ideas in flux, diverse conditions and structures, and a variety of questions, sources and methods.

2.2. Anxieties: Materials, contexts, movement

With this came anxiety. Around and after these works coalesced a large body of new histories examining the full gambit of events, people, and ideas, written by international lawyers, historians, political and international relations theorists, among many others.Footnote ¹⁸ The milestones became millstones; the sources against which the work of extending, critiquing, responding, narrowing or expanding our ways of doing history were processed. Looking to the immediate past decade, I identify three major anxieties: materials, contexts and movements – or, what the archive contains, how it should be placed, and how we read and construct its changes. Doubtless others could be described, but these are the strongest trends.

A first group of anxieties revolves around materials. What should we look at? Which texts and contexts, and how to read the archives we construct? The most recent work exploring these questions and exemplifying attempts to rethink them is the ‘History, Anthropology and the Archive of International Law’ project. This project grew out of collaborative conversations that turned to ‘heated debates’ about history, anthropology and law and resulted in ‘a whole series of questions [being] opened up, particularly regarding methodology’.Footnote ¹⁹ Instead of turning to scholarly work on method, the authors ‘decided to try an experiment instead’: turning to artefacts – a letter, a graphic novel, a suit, a poster, and a memorial.Footnote ²⁰ This project, then, seemed to take up a double rejection of both law and writing generally (with the possible exception of the letter),Footnote ²¹ as well as writings on historical and anthropological method. This is part of a general trend in recent years to take up objects, commodities, literature, daily practices and lived experience as places where we might begin histories of international law.Footnote ²² All of these moves are familiar to historians and general legal historians alike. But I suggest that they signal a dissatisfaction or anxiety about staying too reliant on texts and individuals alone, which is a natural attraction for lawyers (as they were for historians prior to the 1960s) and the basis of earlier doctrinal histories. The anxiety here is that text and interpretation – especially when narrowed to legal texts written and read by lawyers and jurists – will not uncover what is really going on, or will simply replicate and reinforce a preference for what is written, and written by lawyers.Footnote ²³

A second collection of anxieties respond to context, structure and perspective. Where and whose context is relevant for understanding legal changes? What kinds of structural questions – of race, gender, empire, nation – should be asked? Most recently, these have coalesced around the deep problem of Eurocentrism in international law’s history. This was most clearly illustrated in the critical engagements with the Oxford Handbook on the History of International Law’s attempts to ‘globalize’ international legal history by opening up new contexts, engaging with structural questions, and making perspective and positionality central. Criticisms of the Handbook’s aims focused largely on methodology and execution. Martineau, for example, contended that to achieve the editors’ aims of overcoming Eurocentrism, nothing less than a radical shift of vocabulary would be needed: the kind of method and approach that revealed what was hidden, instead of just presenting different stories side by side.Footnote ²⁴ Despite its aims, the Handbook still told resoundingly European histories. In response, the editors suggested they never attempted to organize ‘the’ global history of international law, but rather that global historical approaches should be taken ‘seriously’ as inspirations for the authors.Footnote ²⁵ What the editors called a sceptical reaction to global history was mostly rooted in current (that is, post-2008 global financial crisis) critiques of globalizationFootnote ²⁶ – hinting, then, that the reaction was motivated by present framings and concerns, and hence veering close to one of history’s apparent sins: ‘presentism’. But the risks of flippant ‘globality’, well known to historians, had already been identified by critical international lawyers. B.S. Chimni predicted these kinds of anxieties in 2007 when he identified two tracks for globalized histories of international law: either a hegemonic project of promoting and normalizing global capitalism through common understandings of the past, or an emancipatory project that looks to global capital’s everyday effects and resist stories of co-ordination, co-operation and rationality.Footnote ²⁷ To avoid the pernicious risk that in failing to deal well with structure and positionality we not only misread the past but further entrench and repeat these failures, a number of scholars have opted to radically displace European perspectives by erasing them (almost) entirely.Footnote ²⁸

A third set of anxieties revolves around movement. The central question here – ‘how do ideas move through time?’ – perhaps encapsulates the last decade of work. From it arose the wide problem of the movement between disciplines: how should the methods of law and history relate, and is the historian’s caution about anachronism and presentism one that should be shared by lawyers doing historical work? During the milestone period, basic forms of practical genealogy were readily and effectively adopted.Footnote ²⁹ Following the publication of Anne Orford’s International Authority and the Responsibility to Protect, which tracked changing ways of thinking about the idea of ‘international authority’ plotted through episodes in papal, interwar and decolonization histories, debates over contextualism, genealogy, and anachronism – the movement of international legal ideas in time and space – flourished. Early critiques of that work suggested that explicit reflections on historical and sociological methods were problematically absent,Footnote ³⁰ and later engagements – primarily with Ian Hunter – focused on the need to cleave to (or resist) historiographical frames.Footnote ³¹ This led to a wider debate around the themes, methods, and usefulness of the Cambridge contextualist school of intellectual history, most often and (over)broadly associated with Quentin Skinner.Footnote ³² Orford is not the first international lawyer to look or respond to contextualism.Footnote ³³ Others have made contextualist-style critiques of genealogizing.Footnote ³⁴ But this debate focused directly on the insights and methods of both law and history to consider how history might interact with and differ from the study of legal ideas. For Orford, whereas questions of context and movements in meaning are ‘of interest’ for contextualist historians, they are ‘unavoidable’ for lawyers: ‘contextualist his torians … think about concepts in their proper time and place – the task of international lawyers is to think about how concepts move across time and space.’Footnote ³⁵ That task should focus on movements and changes in ‘juridical thinking’, which recognizes that international law is always inescapably linking past to present: claims about the meanings of concepts, language and norms hold their political or legal force precisely by moving across space and time, to link the past with the present, the specific with the universal, and so on.Footnote ³⁶ Orford also rejected taking method as a cumbersome frame of theoretical demands or injunctions required for ‘real’ and ‘proper’ history.Footnote ³⁷ She instead approaches it as a wider set of theoretical reflections to which history, among other disciplines and perspectives, might usefully contribute.Footnote ³⁸

2.3. Persistence, reflection, engagement

These anxieties persist. I want to be careful about what I do and do not mean in using the word ‘anxiety’. I do not use it to emphasize the critical or negative connotations of its everyday meanings of fear, aversion, unease. Rather, I want to emphasize its more technical meaning of heightened stimulation and a concomitant lack of working through or dealing with that stimulation. We have now a great number of projects stimulated by questions of historical method in part or in full. Yet only a handful consider or make clear the working through of their methods. This is the lack of working through: most considerations of mainstream historiography and its application to guide, structure or inform international legal histories are briefFootnote ³⁹ or refracted,Footnote ⁴⁰ and the bulk of international legal history does not engage with historical theory at all. Even the engagement with the Cambridge School – by far the most thoroughgoing to date – has arguably not really begun in earnest, in that there are many finer points and other thinkers to explore beyond the broad version of Skinner and Hunter’s criticisms that formed the specific engagement with Orford’s work.

The more existentialist connotations of anxiety are also appropriate: the fear provoked by realizing the freedom we have, and not knowing how to evaluate or choose between the many ways that we might go about delving into the pasts of international law. Another side of that freedom is a feeling of responsibility for getting it right, or, at the least, doing it well. That sort of responsibility forms a longstanding part of the role and office of international lawyer: the long felt need to care for and be responsible for the practice, content, projects and damages of international law.Footnote ⁴¹ In looking to history, this moves us towards grappling with responsibility for international law’s roles in those histories: knowing that this work has all too often obscured, legitimated or argued for power and its abuse and that, whatever achievements we can point to so far, it has not calmed the tumult of history as it seems it always promised to do. We want to condemn the failures, culpability and injustices wrought by people and ideas, while also trying to understand and explain these things in their contexts, and, on top of that, trying to discern new horizons and re-imaginings of how the world and its laws might turn out.Footnote ⁴² We want to take up responsibility for telling international law’s pasts truthfully; a reckoning that seems a pre-requisite for any improvement in its futures.

Ultimately, what anxiety captures is a new self-awareness and self-reflexivity about the difficulties of history. I want to think of this as a positive and productive spur to action. It is good and fitting to worry about good historical method. It is usually easier to express qualms about how to go about historical work than it is to offer clear and convincing (or indeed, any) reflections on how to address them. It is understandable in the face of so much history, so many potential sources, figures, events and arguments, where the central questions of what to ask, how to understand something, and what the answers seem to be, are all radically open. Taken together, the three sets of anxieties above illustrate the questions we now ask about our identity when doing things with history and law, about defending or rejecting claims to police our methodological choices, and about trying to mark and preserve an area of study in which we feel comfortable, qualified and able to pursue our scholarly projects.

What we anxiously ponder are the perennial questions of historiography. And yet we remain rarely and often superficially engaged with the ways in which these questions have been asked, answered, rejected, critiqued, re-asked, and re-answered by historical theorists of all stripes. This is arguably neither particularly surprising nor limited to scholars working on the history of international law, and indeed of law in general. Similarly, plenty of historians are thoroughly unexcited by and uninterested in questions raised by historical theory, preferring a more ‘practical’ conception of their work.

Yet in the case of histories of international law today it still seems a curious absence. The theory and practice of international law is thoroughly intertwined with the world of ideas and ideas about the world.Footnote ⁴³ Histories of international law usually contain substantial questions or explorations of theories and theorizing. Moreover, today’s scholars of international law seem especially inclined towards and adept at bringing interdisciplinary insights from a range of fields and theoretical frames – international relations, linguistics, anthropology, social and political theory, the full spectrum of critical theories – to bear on questions of international law. Why, then, amidst the turn to history, are historical theorists so often absent? Why do we so often look to Walter Benjamin, Carl Schmitt, Hannah Arendt, Paul Ricoeur or Jacques Derrida – theorists of general importance and power – for understanding historical-theoretical aspects of international law – without (also) poring over Fernand Braudel, Marc Bloch, Lucien Febvre, Hayden White, Dominick LaCapra, Immanuel Wallerstein, or Reinhart Koselleck?; to raise a standard, unimaginative starting point and progression confined to Western, white male historians and historical theorists, missing the wealth beyond those narrowing confines. Despite the obviousness of this kind of engagement, most contemporary work rarely moves far beyond brief gestures to select major figures – chiefly Skinner and Michel Foucault – or broad catch-all labels – mostly contextualism (sometimes with the still too-broad descriptor ‘Cambridge’) and global history. There have been good exceptions to this general trend. But the trend and the curiousness remain.

And yet, following Orford’s concerns about policing disciplines, we ought to be careful about how we think of disengagement as a problem, and engagement as a solution. I do not suggest that recent work that does not engage directly with historical theory is deficient, ‘unhistorical’ or shows that the history of international law ought to be left to ‘trained’ historians.Footnote ⁴⁴ While debates over frames, methods, archives, interpretation, purposes and perspectives in historical work are conducted mainly by historians, they are not the only scholars with a stake in or insight into them. This is why it is useful to read our current discussions as expressions of anxiety, rather than as problems or failures: that we are anxious to do good historical work, that we worry about problems that have clear analogues in historical theory, and that while historical theory should not be approached as corrective, ready-made cure for our anxieties, it is a store of ideas, methods, questions, interpretive tools, principles – and the disagreements and debates about each of these things – all of which can help us to deepen our own thinking. Moving beyond brief or selective delving into these works and towards thorough engagement – adaptation – is one way forward.

3.1. Useful provocations

How can we begin adapting conceptual history to international law? One starting point is with the already close affinity of law, history and theory, and the importance of concepts in writing our current histories. Many histories of international law could be read or redescribed as conceptual histories,Footnote ⁴⁷ as could those works more specifically dubbed as ‘genealogies’ or sitting within the wider turn to the ‘international’ in intellectual history.Footnote ⁴⁸ Despite this connection, this ease of redescription, and the general aversion to historiography explored above, it is still surprising that one major trend in twentieth century historiography – ‘conceptual history’, treated almost synonymously with one of its major primogenitors, Reinhart KoselleckFootnote ⁴⁹ – has received, at best, fleeting notice as a possible pathway for international legal historiography. In 2012, Koskenniemi provided a short and enticing exploration of those possibilities, seeing Koselleck’s work as a way of highlighting the polemical sides of the vocabulary of international legal argument, which could frame connections between doctrinal arguments and their political, confrontational projects, and ultimately ground new histories of international law that narrate the clash of legal views as ‘an aspect of political struggle’.Footnote ⁵⁰ More recently, Craven used Koselleck’s explanations of the origins of historiography and the emergence of historical time as a frame for the development of international legal history.Footnote ⁵¹ Other works have used the language of ‘polemic’ or ‘combat’ conceptsFootnote ⁵² – very Koselleckian terms – or embrace the breadth of conceptual history, often with scattered references to Koselleck’s works.Footnote ⁵³ One project promises an encyclopedia of fundamental international legal concepts, many of which are explained largely through their history, and which may prove to mimic the foundational multi-volume collection of conceptual histories, the Geschichtliche Grundbegriffe.Footnote ⁵⁴

These are all useful provocations moving in the right direction. But they are not examples of deep engagement with the methods and frames of conceptual history. This part explores the tenets, debates and possibilities of conceptual history in more depth, to think on how they might be adapted. It outlines conceptual history under the rubric of the main anxieties outlined above – materials, context and movements – presenting its main tenets as contained in the works of Koselleck, as well as a handful of contemporary extensions, debates and applications. It then synthesizes this account into general insights for conceptual histories of international law. Finally, it outlines one set of methodological choices made in a concrete project on the history of the concept of recognition.

3.2. Conceptual history: Materials, contexts, movement

First, how does conceptual history approach and order its materials? The principal sources are the works of ‘representative authors’. This begins with ‘classical’ thinkers – philosophers, theologians, poets, economists, legal and political theorists – who considered, debated or introduced new versions of ideas, proposed visions of the world, and promoted or critiqued ideologies. Examining these texts establishes the ‘semantic fields’ of a period: the conditions of possibility about what can be said, argued, understood and done at a particular time. We then turn to wider sources that might contain social and political debates using the concept examined: newspapers, periodicals, pamphlets, parliamentary debates, government sources, diaries, letters, and, to some extent, dictionaries and encyclopedias.Footnote ⁵⁵ Understanding a concept’s impact in the world and its formation and change is largely gleaned from comparing and contrasting uses between and within these categories of sources.Footnote ⁵⁶ In Koselleck’s original approach, these sources and examinations must be confined to singular national-linguistic traditions and political communities. That is because although conceptual history looks to a wide range of actors and forms of communications, the terms used –et al. and hence their past uses – must be largely similar and shared. Apparently similar translated terms (for example, state, état, Rechtstaat) hold vastly different meanings, connotations and uses, rooted in their varied histories within national-linguistic communities.Footnote ⁵⁷ Recent works have sought to expand this national-linguistic-centred approach, thinking through the translation of concepts across languagesFootnote ⁵⁸ and the comparative, transnational and global dimensions of language.Footnote ⁵⁹

Secondly, what broad contexts are relevant? Conceptual histories are sometimes dubbed ‘pragmatic’ in their linking of language, ideas and the context of a period, specifically its intellectual and social history.Footnote ⁶⁰ While changes in political and social situations are often presented in relatively general terms, changes in language, arguments and ideas should be situated within these broader transformations. Context is not just a background to concepts. It can also condition their possible meanings, and – most importantly – the kinds of political projects or views of the world that a concept can be used to describe or advocate for at a given point in time.Footnote ⁶¹ Koselleck’s approach involved several stringent principles about where and how the engagement with context should take place. Conceptual history should neither try to draw conclusions about historical facts directly from linguistic sources, nor focus only on ‘intellectual expressions’ of earlier thinkers.Footnote ⁶² Rather, it seeks to understand how concepts were ‘used in the past to order experience’.Footnote ⁶³ Those ordering concepts can then form the basis for theorizing the world or society, eventually becoming central parts of political or ideological arguments, which can then be examined thematically for changes in them over time.Footnote ⁶⁴ The concrete ‘facts’ of history and the language of the times play important roles, and their relevance is prompted when a concept uses, shapes or is shaped by them, illustrated by changes to its content.Footnote ⁶⁵ A distinction between historical facts and language use must be maintained to ensure that the inquiry does not lead to only factual history, or simply a catalogue of a language’s use of political and social terms.Footnote ⁶⁶ Contemporary works have sought, in various ways, to globalize both language and context, to move beyond the nation-state and largely European focus of Koselleckian conceptual histories.Footnote ⁶⁷ Even where Europe remains the focus, recent work shows careful appreciation of the importance of non-European contexts and influences for understanding conceptual change taking place in European discourses.Footnote ⁶⁸

Third, how do concepts move in conceptual history? Koselleckian conceptual history fixes on a concept, charting its emergence as a ‘basic concept’ over time.Footnote ⁶⁹ ‘Basicness’ is a complicated idea, but includes those ideas that are essential and contested: ideas that are ever-present, invoked by all political actors, indispensable for furthering political projects, and used so often that they crystallize into single words or terms: ‘state’, ‘human right’, ‘democracy’.Footnote ⁷⁰ A conceptual history framework plots the transition to this ‘basicness’ by charting where, when, how and why different associations, connotations and strands of meaning are added to, endure in, or are discarded from a concept.Footnote ⁷¹ Addressing the accumulated criticisms of the Geschichtliche Grundbegriffe, Koselleck clarified that when a concept is placed in historical context, it can be called ‘basic’ ‘if and when all contesting strata and parties find it indispensable to expressing their distinctive experiences, interests, and party-political programs’.Footnote ⁷² This moment of transition is indicated by a concept coming to ‘dominate usage’, a starting point of ‘minimum commonalities’ in meanings of a concept that are necessary for it convey and contest social and political experiences and programs; more simply, the commonality of language needed for political discourse – and hence action – at all.Footnote ⁷³ Movement in conceptual history takes place within a particular conception of time. A first step is uncovering the possibilities of what can be thought, said, and done, at various points in time.Footnote ⁷⁴ The transition from tradition to modernity – a movement to basicness – is not a simple ‘before’ and ‘after’ teleology. Instead, it is a gradual shift where a concept takes on a temporal aspect, where it can be used to describe possible futures, and advocate for one or another of those futures.Footnote ⁷⁵ In Koselleck’s work, this transition period – the Sattelzeit or ‘saddle time’ – is the period during which most concepts underwent this change. For Koselleck, it is posited as approximately 1750–1850, but other projects have stretched further backwards and forwards in their periodizations,Footnote ⁷⁶ and later commentators have seen the Sattelzeit as any transition period that stretches continuities and discontinuities to the present.Footnote ⁷⁷ Within this transition, concepts become ‘essentially utopian’: they could do more than just describe the conditions of the world; they begin to identify conditions that should change and prescribe action to achieve those changes. Somewhat paradoxically, during this transition, interlocutors are forever trying to fix an exclusive, singular meaning to a concept; to present it as a universal, atemporal, coherent, and univocal idea. But because the meanings and uses of concepts are constantly in flux, responding to and shaping societies, and finding different uses in political arguments, these concepts – even, or especially, when presented as definite – remain always contested, ambiguous and controversial.Footnote ⁷⁸ Their continuities and ruptures within these arguments indicate their changes and movements.

Perhaps the best shorthand description of conceptual movement is as four ‘hypotheses’. Prompted by critical discussions over the lack of clarity in Koselleck’s work, these hypotheses neatly distil conceptual historical investigation itself.Footnote ⁷⁹ In their hypothesis form, they are built from the general trends seen in specific conceptual histories in the GG. But for the purpose of adaptation, they can be easily repurposed into hypothetical questions. The first is temporalization: when is a concept placed into a longer horizon of a particular philosophical or historical development, or into a teleology of stages of development? The second is democratization: when is a concept’s audiences expanded beyond small elite political strata to the larger body politic? The third is ideologization: when does a concept gain the ability to be incorporated into ideologies; when is it picked up by various social strata and moved into ‘isms’ and singular nouns (‘liberalism’, ‘liberty’) for use in politics? The fourth is politicization: when does a concept begin to be used by antagonistic political actors to advance their projects during rearrangements of social, regional and national connections driven by revolutions, wars and economic changes. These questions are phrased as ‘when’ inquiries; after that answer comes the questions of who, how, why, and with what effects?

3.3. Some adaptations

These hypothetical questions can be usefully adapted to guide histories of international legal concepts. We might ask instead: when might an international legal concept be placed into wider philosophical, historical or teleological narratives? When might it gain wider speakers and audiences beyond just the elite strata of jurists and state leaders? When might it be generalized or abstracted and then fitted into ideologies espoused by particular states or groups? And when might it become practical or usable for states or groups in articulating and pursuing political projects amidst the torrents of world history? Again, after identifying the when, we may move to the who, how, why, and with what effect. We may also see fit to build in new hypotheses specific to international law. One important example might be universalization or internationalization: when and how does a concept begin to be used to make demands across borders, or posed as asking or attaining the assent of all nations or peoples?Footnote ⁸⁰ Another could be legalization or juridification: where and how do ordinarily or formerly ‘political’ concepts become juridified; that is, described and defended as matters of law and not politics, and with what effects?

Consistent with conceptual history’s focus, histories of international legal concepts should look to identify the emergence of ‘basic concepts’ in international legal thought and practice. Basic concepts in international law, like basic concepts in general, would be those terms that are essentially contested and controversial but are simultaneously central to articulating arguments, positions or projects in international law.Footnote ⁸¹ A starting list could be generated from the headings of any major textbook – ‘sources’, ‘sovereignty’, ‘treaty’, ‘international court’, ‘general principles’, ‘human rights’ – to which could be added major themes and contested ideas: ‘civilization’, ‘progress’, ‘empire’, ‘authority’, ‘protection’, ‘jurisdiction’, ‘comity’, ‘community’, ‘war’, ‘peace’. Technical concepts or major doctrinal debates could also, potentially, achieve the level of basicness: ‘competence’, ‘non-refoulement’, ‘monism’.

During the general period of transition from traditional to modern concepts, international lawyers were engaged in forging a professional identity with its own scientific, technical and expert vocabulary. The ‘representative authors’ may include writers from philosophers to theologians, but jurists and juristic works that describe, theorize, debate and apply concepts in international law are likely to contain the bulk of conceptual discussion and change. The limits of this professional vocabulary and its comparatively few interlocutors pose problems for source selection; namely, where to widen out the texts and debates that reflect conceptual changes in the world? One avenue is expanding the field of interlocutors from jurists, judges and practitioners to also encompass those reading, acting and relying on legal advice in public discussions – state leaders, government officials, international bureaucrats, leaders of social movements – as well as thinkers in other disciplines who are taken up by or come to influence jurists. The latter group may be a source of wider conceptual changes in social and political concepts that come to be incorporated, reflected (or rejected) in changes in law and legal theory. More generally, engaging with the histories of a wide variety of closely linked political, social and economic concepts to understand the boundaries of what is thinkable and expressible in legal argument is likely to be just as important as exploring the internal limits of legal discourse. Finally, and most closely aligned with general conceptual history, the moments when international legal concepts gain popular understandings and political deployments in wider civil society discussions – consider the popular discourse on the use of force and the Iraq War,Footnote ⁸² or everyday discussions of the work of the International Criminal Court in African nationsFootnote ⁸³ – may prove to be the most important sites for shifts in meaning.

A second source problem is translation and nationality. Translation and comparison of similar concepts across jurisdictions and legal languages seem almost a necessity for histories of international legal concepts. Cross-national and cross-regional conversations are common and important for the development of international law, and are the site for the furthering of political projects. It is important, however, not to dispose of the national-linguistic focus of Koselleckian conceptual history too hastily. While the texts and projects of international lawyers are designed to have effects across borders, into the states and societies of other polities or towards an international community in general, they are often rooted in national legal languages and cultures and support national foreign policies. Situating international legal arguments in their national traditions may clarify points of transnational contention and disagreement but they may also highlight more local shifts in the meaning of concepts. Many central building blocks of legal thought hold meanings and connotations specific to various legal cultures: consider the widely different meanings of terms for law, right, justice, adjudication, constitution, state, international law, even within European traditions.Footnote ⁸⁴ How and where these different conceptions encounter each other, beyond the confines of the nation, cannot be ignored, as they largely can in nation-focused conceptual history. Certainly, the dissemination, incorporation or resistance to ‘foreign’ legal ideas will be one site of this engagement. Juristic texts themselves have different forms, levels of authority, audiences and impact on practice depending on the culture. Finally, whereas groups seeking to use concepts for (domestic) political ends are a major focus for general conceptual history, the relevant political projects here are likely to be primarily those tied to visions of international – rather than domestic – society: debates over interventions, legal systems, the appraisal or criticism of particular forms of government, the projects of colonial expansion and control, and the role of Great Powers and international co-ordination in furthering or curtailing these kinds of projects are the sorts of political agendas that are relevant here. And yet ‘domestic’ forms of political concepts and ideologies as developed in different nations will, however, remain important, as they so often form the models to be projected and imposed on to international society, as was the idea of Europe.

Because international law holds relevance in so many historical events and so many forms of life and action, the array of factual contexts that might seem necessary or at least useful for understanding its concepts is immense. One mode of narrowing down that breadth is to begin with unpacking the contexts that an author has selected or lived through, to ask which events or trends are invoked, to what end (as historical illustration; as a current dilemma; as an analogy or distinguishable case?), and which are ignored? Which contemporary problems is the text aimed at addressing, illuminating, or criticizing? The contexts for placing these texts are those of their authors (personal, intellectual, political), the projects and visions of international law and society these texts describe or promote, and the concrete factual events that they are shaped by or seek to interpret or influence: diplomatic interactions, disputes, wars, treaties, trade, congresses, imperialism, colonialism, and so on. As with general conceptual history, paying attention to the way formulations of concepts might press on interpreting the facts of the world is vital: concepts affect the portrayal of context just as much as language and that world may shape concepts themselves.

Finally, examining movement in international legal concepts means paying close attention to juristic texts as the main sites of likely conceptual change but to be read and contextualized in their wider worlds. As with general conceptual history, the movements we should look for are stability in meanings and connotations over time, changes recognizable at specific times, and the accretion and discarding of meaning likely seen in doctrinal endorsements, modifications, disagreements or criticisms. These movements may be divided into sub-periods which might emphasize the rise or fall of particular understandings or applications of a concept, or shifts in their use in political projects. These various trends may well overlap substantially. The central question remains what kinds of meanings and projects were – or seemed – thinkable and realizable within the boundaries of law and legal ideas at the time, and how did these texts expand those meanings or further those projects.

3.4. A concrete project

A recently published conceptual history of recognition provides a concrete example of how these historiographical considerations might play out.Footnote ⁸⁵ ‘Recognition’ is, today, perhaps the clearest example of a basic concept in international law. Academically, it is usually explained as a diametric opposition of constitutivist and declarativist theories. Politically, it almost always forms a moment and space of wide, contentious and acrimonious argument that deploy competing factual, political and ideological claims which are quickly cloaked in the language of law. For this reason, it is more easily accepted as holding important political dimensions, at least compared to other more traditionally ‘legal’ concepts in international law.

The history I told presented one ‘British story’ of recognition. It examined the juristic works of international lawyers writing in Britain as well as their political and social projects and contexts to show how different meanings of recognition emerged and formed a ground for contestation over law, empire and the shape of the world. In the nineteenth century, recognition began as a descriptive, European-diplomatic concept, before being refashioned as the basis for chauvinist theories of international law, and then more broadly use as a racialized language that furthered colonial and imperial projects. In the twentieth century, jurists began to shed the language of civilization from the meaning of recognition, which gave way to widely divergent political and utopian projects amidst the new international system of the League of Nations. By the 1950s, recognition had emerged as a basic concept – essentially contested and inescapable – amid the ruins of the British Empire, the establishment of the United Nations, and the turn towards decolonization and self-determination.

The materials for this history were a wide range of juristic texts published over two centuries. Its contexts were the political and social projects of these jurists, as well as changes in Britain, its empire, and the world. The movements were those of the concept of recognition, as well as these contexts, which split into several strands that partly overlapped to reflect the concurrence and contestation of these ideas. These choices were made in line with the tenets on adaptation outlined above. They balanced continuity and connection against change and diversity. The continuities and connections lay in the focus on a concept encapsulated in one unchanging word, in similar writing styles, social situations, worldviews, and a geographical and political connection around ‘Britain’ and its empire. The change and diversity came from the different projects and purposes to which recognition was put, and the changes of contest in Britain, its empire and the world. It picked up a tradition of legal thought and practice that is recognizably ‘British’ and yet still complex, contested and largely incapable of clear definition. In many senses, this is an immensely conservative frame: around published texts of white male legal scholars, largely upper-class, most holding university chairs, all but one Christian, working in and thinking about one of the world’s most powerful, long-lived imperial polities. But in going back to these texts and figures carefully, with the insights of conceptual history in mind, we can see anew just how and where the assumptions about race, power and authority came to be entwined in the idea of recognition. It is not to promote these figures as the only writers worth looking at. But nor does it demand we re-write their works or judge them by today’s standards, as some – critical or not – have worried.Footnote ⁸⁶ Their problematic aspects lie on the surfaces of their writings. Those aspects are not only occasions for judgment, but also guides to why and how we ended up as we did; how the ideas that we might abhor today were moved into the sediment of international legal thought. We follow the leads to who has been said to have invented these things, invoked them, shaped them, but in doing so we need not necessary write ‘to’ them,Footnote ⁸⁷ taking the risk of reinscribing them further.

My choices in this project could have been made differently. Its sources might have placed greater weight on public debates using the language of recognition. Two clear examples were, first, the 1820s campaigns by London merchants for British recognition of the Spanish Republics which led to Sir James Mackintosh’s policy shift and, secondly, letters to newspapers from an enthralled public about recognition and the American Civil War that prompted the publication of Montague Bernard’s letters explaining recognition to readers of The Times. These, among many other instances, might have led to a more public discourse focused project. Another approach might have emphasized parliamentary debates and committee reports, or judicial decisions and their wider reception, or shifting concepts deployed within the Foreign Office. A larger temporal frame might have opened up earlier contexts of papal interventions or recognition’s possible proto-concepts, like legitimacy, jurisdiction or authority, which might have been sourced in ancient forbears in Rome or Greece. Within its own timeframe, it could have more keenly explored debates about revolution and recognition in relation to America or France held in more political than legal tones. A more ambitious, transnational frame could have incorporated other Anglophone writers throughout British settler colonies, or looked to French, Spanish, German or Russian writings, or canvassed recognition’s great importance in Central and South America. Beyond Europe, the history might have engaged with recognition’s place – or absence – in Third World legal thought; in the theories and practices of political and social movements throughout the British Empire in the long marches to independence, or the interventions and engagements against the Ottoman, Japanese and Chinese Empires. Looking to the post-war changes in the concept, and the rise of other competing ways of thinking about state legitimacy and subjecthood – self-determination, later democracy – could have allowed the tracing of other legacies in recognition’s possible newer guises and transformations.

This is part self-criticism and part wishful thinking. The above project was but one starting point. It could not canvass all the possibilities noted above and explore every path that might have been illuminating. It was ‘a’ conceptual history, focused on one small, significant part of a global debate on an issue of old, perennial importance, not ‘the’ definitive account. Consciously noting these other possible methodological choices reinforces that conceptual history offered a powerful scaffold for thinking through why and how the choices in this project were made. It provided a set of tools for deciding on sources and contexts and for thinking about conceptual movement. Ultimately, this interrogation shows the promise – and the difficulty and complexity – of constructing conceptual histories, even those confined to a single state and a standard length of about two centuries. It also allows us to begin thinking about what might be gained by looking to other schools of historiography.