Wednesday, August 24, 2016

Orford on International Law and the Historical Method

Anne Orford, Melbourne Law School, has posted International Law and the Limits of History, which appeared in The Law of International Lawyers: Reading Martti Koskenniemi, ed. W. Werner, A. Galán, and M. de Hoon (Cambridge University Press, 2015):    
This chapter explores the effect that the turn to history has had on the field of international law. The publication of Martti Koskenniemi’s history of the international legal profession, The Gentle Civilizer of Nations, is often presented as representing a moment at which the field of international law took a ‘turn to history’, or more precisely, a turn in its mode of writing history. Of course, international law has always had a deep engagement with the past. Past texts and concepts are constantly retrieved and taken up as a resource in international legal argumentation and scholarship. Thus the ‘turn to history’ trope marks a turn to history as a critical method, rather than a turn to history as a substantive engagement with the past. Koskenniemi himself introduced The Gentle Civilizer as a ‘move from structure to history in the analysis of international law’ and ‘a kind of experimentation in the writing about the disciplinary past’. In later work, however, he became much conventional in his exposition of history as method, arguing against the ‘sin of anachronism’ and urging critical scholars to focus on the meaning of texts for their authors’ ‘contemporaries’. A similar turn to history as method more broadly begin to shape new writing about international law over the decade following The Gentle Civilizer’s publication.

This chapter suggests that the turn to history as method that followed in the wake of The Gentle Civilizer was an abandonment of the critical potential of that initial work. What marked out The Gentle Civilizer as a singular achievement was Koskenniemi’s attempt to hold together the history of international law, the sociology of international law, and the practice of international law. If the attempt to hold together those genres is abandoned, the critical potential of historical work in international law is lost. The chapter concludes by exploring what the historicizing of international law as a critical gesture might mean for the field going forward.

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