Hulsebosch on Constitutionalism and Foreign Capital Investment in the Early Republic

Daniel J. Hulsebosch, New York University School of Law, has two new posts.  The first is From Imperial to International Law: Protecting Foreign Expectations in the Early United States and appears in UCLA Law Review Discourse 65 (2018): 4-18:

This Essay argues that several principles associated with modern international investment law and dispute resolution arose in the wake of the American Revolution, as the revolutionaries and Britons sought to restructure trade relations, previously regulated by imperial law, under new treaties and the law of nations. They negotiated such problems as the currency in which international debts would be paid; the ability of foreign creditors pursue domestic collection remedies; whether creditors had to exhaust those remedies before their nation could resort to international arbitration; and the form of state-state arbitration of private disputes. The specific setting of these negotiations — the aftermath of a colonial settler revolution — narrowed the compass of disagreement, compared to many later postcolonial negotiations. In addition, the negotiations assumed that the exhaustion of national remedies remained the standard method of resolving private debt disputes. Notwithstanding these important differences, the principles and institutions developed after an imperial civil war influenced the development of international investment law.

The second is Being Seen Like a State: How Americans (and Britons) Built the Constitutional Infrastructure of a Developing Nation, which appears in the William & Mary Law Review 59 (2018): 1239-1319:

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution — at least, the Federal Constitution — might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope. Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, self discipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with the conventional account of the American Founding, just an intramural affair? This Article argues that many foreigners did notice, not least because some of them had participated in the process of reform. Although no foreigners intervened directly in drafting or ratification, international demands, incentives, and reactions shaped the way that leading American Framers pursued constitution making. After a “foreign ratification debate” that stretched into the first years of the Washington Administration, Britain normalized diplomatic relations with the United States and substantial capital investment followed. In 1791, the British Board of Trade approvingly analyzed the Constitution in a report designed to guide the Privy Council as it drafted instructions for its first official envoy to the United States. Within fifteen years, Britons were the largest holders of foreign investment in the United States, including state and federal “domestic debt,” or the restructured wartime certificates and loans that had floated the Revolution. In sum, Britons ultimately financed much of the project of American independence, and contemporaries believed that these credit relations would reduce, without eliminating, the prospect of renewed war.

Eslava on Decolonization and the Developmental State

Luis Eslava, University of Kent, has posted The Developmental State: Independency, Dependency and the History of the South, which is forthcoming in The Battle for International Law in the Decolonization Era, edited by J. von Bernstorff and P. Dann:

In this chapter I examine the genesis and the importance of the developmental state for our thinking about both the period of decolonization and, in a more general sense, the history the international legal order. Using as a point of departure the earlier experience of Latin America with the European colonial enterprise, and later on with the challenges posed by colonial independence and state formation, and then tracing the legacies of this experience to the rest of the Global South after WWII, the chapter demonstrates how the developmental state became, during the era of decolonization, a mandatory form that came to outline the possibilities, as well as the limits, of what was thinkable and doable in a maybe never-to-be fully post-imperial world.

Chigozie on International Organizations and Global Security

Nnuriam Paul Chigozie, University of Lagos, has posted The Quest for Global Security and Peace, and the Rise of International Organizations: Historical Perspective, which appears in the Equatorial Journal of History and International Relations 1 (2018): 1-12:

Among the central concerns of international politics are questions of war and peace. Why does war happen? How can wars be ended? Is it possible to avoid conflicts altogether? Throughout the course of world history, people aspired for global peace, security, socio-cultural relationship, and global federations. The Peace of Westphalia signed in October 1648 saw the rise of sovereign states in the modern sense in Europe, but the cause of global peace and security did not receive a significant boost until more than a century and a half thereafter, when the Congress of Vienna consciously attempted, for the first time in modern diplomatic history, to substitute an idea of the collective peace and security of Europe in place of old competitive security that had survived in the Balance of Power system. Against this background, this study aims to analyze how the quest for global peace and security led to the rise of international organizations over the years.

Moyn on Legal History as a Source of International Law

This is gated, but it ended up in our inbox and is interesting, so we’re posting it anyway: Samuel Moyn, Legal History as a Source of International Law: The Politics of Knowledge, in the Oxford Handbook of the Sources of International Law, edited Samantha Besson and Jean d’Aspremont:

This chapter maintains that no serious theory of the sources of international law can avoid what professional historians now take for granted: namely, that historical knowledge is necessarily political. It begins by laying out this argument, before assessing its implications for mainstream accounts of the sources of international law. The chapter goes on to explore a recent legal conflict in which history figured in order to test and improve the claim that history is political. It looks at the recent contention in US courts interpreting the Alien Tort Statute (1789) about whether a norm of corporate liability for atrocity crimes is part of customary international law. Finally, the chapter concludes that this fascinating instance of the uses of history in the ascertainment of the requirements of international law fits well the theory that historical knowledge is ineradicably political, though contained by professionalism.

Here are the parts of the piece:

I. Introduction
II. History of International Law as Contemporary Politics
III. Historians versus Lawyers: A Brief Contrast
IV. The Setting: The Alien Tort Statute in US Courts
V. Analysing the Historical Debate
VI. Conclusion: How the Past Matters in International Law
Research Questions
Selected Bibliography
Notes

From Goldwater to Zivotofsky: The Political Question Doctrine in the D.C. Circuit

[We’ve previously noted this event but now have an updated announcement.]
The Historical Society of the District of Columbia Circuit presents:

From Goldwater to Zivotofsky: The Political Question Doctrine in the D.C. Circuit

Date: Wednesday, March 7, 2018       
Time: 4:30 p.m. – 6:00 p.m.
Location: Ceremonial Courtroom, 6th Floor
E. Barrett Prettyman U.S. Courthouse
3rd Street & Constitution Avenue, N.W., Washington, D.C.

In December 1978, President Carter decided to recognize the People’s Republic of China, instead of the Republic of China, simultaneously invoking the termination clause of the Mutual Defense Treaty with Taiwan. Senator Goldwater and other members of the Senate and House sued, contending that termination could not be constitutionally effective without concurrence of the entire Congress. D.C. District Judge Oliver Gasch enjoined the Secretary of State from taking action to implement the termination, holding that the U.S. could not terminate the Treaty until the President’s actions received the approval of two-thirds of the Senate or a majority of both Houses of Congress. President Carter appealed contending that the case presented a non-justiciable political question that should not be resolved in the courts but rather through give-and-take accommodation of the political process. The D.C. Circuit reversed on the merits, concluding that the President had not exceeded his constitutional authority; no judge would have declined to exercise jurisdiction by reason of the political question doctrine. The Supreme Court reversed without argument and ordered the case dismissed, with a plurality concluding that the case was non-justiciable under the political question doctrine.

Our program will include a reenactment of arguments presented to the D.C. Circuit sitting en banc in 1979 on the political question issue in Goldwater v. Carter. Professor Stephen Vladeck will set the stage. Erin Murphy will argue for President Carter, Harold Koh for Senator Goldwater. Senior Circuit Judges Edwards and Williams, who reached opposite conclusions on the political question/justiciability issue in a 1991 case, will preside. Following the reenactment, Paul Smith will moderate a discussion exploring the scope and viability of the political question doctrine today. Panelists will include Professor Vladeck, the advocates Ms. Murphy and Professor Koh, as well as Beth Brinkmann.

Symposium Issue: Legal History in Latin America

We have word of the publication, on-line, of the first of two volumes of Precedente: Revista Jurídica devoted to Legal History in Latin America. (Universidad Icesi of Colombia publishes the journal.)  The issue is in Spanish and is available as a free download.  Here is the TOC:

Régimen de las moratorias en las provincias argentinas de Salta (1825) y Tucumán (1861)
Abelardo Levaggi

Enseñanza de la historia del derecho centrada en el aprendizaje de los estudiantes a lo largo de 115 años de la fundación de la cátedra (Chile, 1902)
Eric Eduardo Palma, María Francisca Elgueta

Tradición y cambio político en Provincia: Popayán, Nueva Granada y la redacción de la Constitución de 1814
Adolfo León Guerrero García

El primer panamericanismo: puente entre el derecho de gentes y el derecho internacional
Luis Ociel Castaño
   
El pragmatismo jurídico de Oliver Wendell Holmes Jr. y el Derecho como Sistema Social de Niklas Luhmann: un encuentro histórico
Vagner Felipe Kühn
   
Derecho y caricatura política: el constituyente primario de 1990 y el cambio constitucional de 1991
Diana Paola Gil Guzmán

An Essay Collection on "Law and Memory"

Published last fall by the Cambridge University Press is Law and Memory: Towards Legal Governance of History, edited by Uladzislau Belavusau, University of Amsterdam, and Aleksandra Gliszczynska-Grabias, Polish Academy of Sciences.

Legal governance of memory has played a central role in establishing hegemony of monumental history, and has forged national identities and integration processes in Europe and beyond. In this book, a range of contributors explore both the nature and role of legal engagement into historical memory in selected national law, European and international law. They also reflect on potential conflicts between legal governance, political pluralism, and fundamental rights, such as freedom of expression. In recent years, there have been numerous monumental commemoration practices and judicial trials about correlated events all over the world, and this is a prime opportunity to undertake an important global comparative scrutiny of memory laws. Against the background of mass re-writing of history in different parts of the world, this book revisits a fascinating subject of memory laws from the standpoint of comparative law and transitional justice.

Macalister-Smith and Schwietzke on Diplomatic Conferences & Congresses

Peter Macalister-Smith, Assistant General Editor of the Encyclopedia of Public International Law, and Joachim Schwietzke, Library Director Emeritus at the Max Planck Institute for Comparative Public Law and International Law (Heidelberg) have published Diplomatic Conferences and Congresses

A Bibliographical Compendium of State Practice 1642 to 1919 (Arbeitshefte der Arbeitsgemeinschaft für juristisches Bibliotheks- und Dokumentationswesen 25) with W. Neugebauer. From the press: 

A survey of diplomatic conferences and congresses convened from 1642 to 1919 with extensive references to their published documents and a synopsis of the resulting acts, agreements, conventions, declarations, treaties and other instruments adopted by each conference or congress.
The meetings of the conferences and congresses are arranged thematically in 111 groups starting at Münster and Osnabrück to prepare the Peace of Westphalia. In total 280 conferences and congresses are recorded. Over one third of the conferences and congresses were held from 1827 to 1919 at London and Paris. Other leading cities in order of diminishing frequency were Brussels, Bern, The Hague, Berlin, Istanbul, Washington and Vienna. The compendium closes with the peace of Brest-Litovsk (1917) and the Inter-Allied Conference of the Powers held in Paris and environs from 1919 to 1920. The Latin American and Pan American congresses are well represented, for example at Buenos Aires, Guatemala, Lima, Managua, Mexico, Montevideo, Panama, Rio de Janeiro, San José, San Salvador, Santiago and Tegucigalpa. Annexes supply further information on the Versailles treaty with Germany and the Covenant of the League of Nations.

Here is the Table of Contents. Further information about the collection is available here. 

Landmark Cases in Public International Law

New from hart Publishing is Landmark Cases in Public International Law, edited by Eirik Bjorge and Cameron Miles. 

The past two hundred years have seen the transformation of public international law from a rule-based extrusion of diplomacy into a fully-fledged legal system. Landmark Cases in Public International Law examines decisions that have contributed to the development of international law into an integrated whole, whilst also creating specialised sub-systems that stand alone as units of analysis. The significance of these decisions is not taken for granted, with contributors critically interrogating the cases to determine if their reputation as 'landmarks' is deserved. Emphasis is also placed on seeing each case as a diplomatic artefact, highlighting that international law, while unquestionably a legal system, remains reliant on the practice and consent of states as the prime movers of development.

The cases selected cover a broad range of subject areas including state immunity, human rights, the environment, trade and investment, international organisations, international courts and tribunals, the laws of war, international crimes, and the interface between international and municipal legal systems. A wide array of international and domestic courts are also considered, from the International Court of Justice to the European Court of Human Rights, World Trade Organization Appellate Body, US Supreme Court and other adjudicative bodies. The result is a three-dimensional picture of international law: what it was, what it is, and what it might yet become.

TOC after the jump.

Grotiana 38

Volume 38 (2017) of Grotiana is now out.   The journal, as Brill’s website explains,

appears under the auspices of the Grotiana Foundation. The journal’s leading objective is the furtherance of the Grotian tradition. It welcomes any relevant contribution to a better understanding of Grotius’ life and works. At the same time close attention will be paid to Grotius’ relevance for present-day thinking about world problems. Grotiana therefore intends to be a forum for exchanges concerning the philosophical, ethical and legal fundamentals of the search for an international order.

    Acceptilatio. Hugo Grotius on Satisfaction
        Johannes Magliano-Tromp
     
    Having Made Peace through the Blood of the Cross
        Eltjo Schrage
     
    Too Subtle to Satisfy Many: Was Grotius’s Teleology of Punishment Predestined to Fail?
        Jeremy Seth Geddert
     
    Punishment and Sovereignty in De Indis and De iure belli ac pacis
        Brad Hinshelwood
     
    Grotius and Kant on Original Community of Goods and Property
        Sylvie Loriaux
     
    Grotius, Necessity and the Sixteenth-Century Scholastic Tradition
        Bart Wauters
     
    Hugo Grotius in Dialogue with His Colleagues
        Lydia Janssen
     
    Pirating Mare liberum (1609)
        Mark Somos and Dániel Margócsy
      
    Adam Smith’s Unfinished Grotius Business, Grotius’s Novel Turn to Ancient Law, and the Genealogical Fallacy
        Benjamin Straumann
     
    Christian Wolff’s Lectures on Grotius’s De Iure Belli ac Pacis from 1739–1740
        Frank Grunert and Béla Kapossy

CFP: Social, Women’s, Labour and Radical Histories of International Law

[We have the following call for papers.]

The Local in the Universal: Social, Women’s, Labour and Radical Histories of International Law

The Interest Group on the History of International Law seeks abstracts for an Agora Proposal to be submitted to the European Society of International Law for its 2018 Conference on ‘International Law and Universality’ to be held 13–15 September 2018 in Manchester.

Universality’s flip side is the local and the particular. Locations are inescapable parts of any idea of universality. People are positioned in time, place, class, gender, race, ethnicity, indigeneity, and sexuality. These particulars formed familiar coordinates for locating different peoples within ideas of the universal; at the bottom of hierarchies — subsumed, excluded, ignored, erased.

The beginning of international legal history’s recent renaissance lay in exploring one assertion of universality — the liberal-democratic progressive narrative — and Europe as its location, and white male jurists as its particular. Later advances began to unpack the imperial, racial and class aspects of international law’s pasts, to understand how that universal spread to many localities. Some of the most recent and exciting historical projects have begun to draw our attention to the everyday, to materiality, objects, and archives beyond the legal, to tell personal, hidden and revealing histories of international law.

And yet, international legal history has so far been largely resistant to more radical forms of history that spurred so many of the main innovations in twentieth century historiography: social histories, women’s histories, labour histories, and histories of resistance and radicalism. Other themes at the 2018 ESIL Conference invite papers on universality and particularism’s histories at the juridical, conceptual and theoretical levels. This Agora seeks to expand that universe in the direction of something more local, personal and radical — to uncover histories that have been hidden within these longues durées and big trends.

Fitting with and interrogating the theme of universality, we seek papers that look for the local in the universal and the legal, from across the globe and from any period of historical inquiry. We are looking to share the hidden stories, archival gems, and accounts of everyday lives and movements that illuminate and contest the universal in new and powerful ways. It is particularly fitting that we do this in Manchester, a city that was one major birthplace of the industrial revolution, the labour movement, and the suffragette movement.

Issues arising within this theme might include, but are not limited to:

• The role of women and women’s movements in constructing, challenging and critiquing the ideas of universality in international law.

• Labour and international law: competing universals of solidarity and capitalism.

• Race, ethnicity, indigeneity, intersectionality and the stories of challenging, rethinking and repurposing the universal.

• Rebellions, radicalism and resistance: histories of popular debate, protests and discord over universality in law.

• Shifting the ‘turn to biography’ in international legal histories: introducing the field to new lives and new, untold stories.

• The significance of rural areas, cities, communities, migration and labour flows for rethinking law, the international, and the universal.

Submit an abstract of no more than 800 words, submitted by email to esilighil@gmail.com by 17 January 2018. No late submissions will be considered.  An interest group subcommittee will then blind review the abstracts and finalise the proposed format. The likely format will be a panel of 4 papers, but this may change depending on abstracts received. Selected abstracts will be sent, with the Agora theme, to the ESIL 2018 Conference organisers for their consideration by 31 January 2018. If the proposal is successful, full papers (minimum 3000 words) will need to be submitted by 15 July 2018 for circulation to other Agora participants.

We encourage proposals from scholars in any discipline — legal or not — and at any stage of career. Selection will be based on scholarly merit and with regard to producing an engaging workshop, without prejudice to gender, seniority, language or geographical location.

Please direct any questions to Martin Clark (m.clark1@lse.ac.uk) or Markus Beham (markus.beham@uni-passau.de).

Weekend Roundup

• The Cornell Chronicle chronicled Juridical Colonialism, International Law and the Ottoman Response, a lecture by Mostafa Minawi, assistant professor of history and the director of Cornell University’s Ottoman and Turkish Studies Initiative.  

• Lots of items of interest in the Washington Post's Made by History section: Mehrsa Baradaran (University of Georgia School of Law) on "why we need more government, not less, in the war on poverty"; Jamie Piltch (independent) on the trajectory of free speech on college campuses; Christopher W. Schmidt (Chicago-Kent School of Law/American Bar Foundation) on the "right to discriminate"; and Tisa Wenger (Yale Divinity School) on "discriminating in the name of religion."

• From the Journal of the Civil War Era, a "dispatch from the field" by Martha S. Jones (Johns Hopkins): "The Blood Is in the Details: When Scars of Slavery Are Markers of Freedom."

• On Monday, January 8, 2018, Melvyn P. Leffler, University of Virginia, will present on his latest book, Safeguarding Democratic Capitalism: U.S. Foreign Policy and National Security, 1920-2015 in Washington History Seminar at the Woodrow Wilson Center for International Studies.

• And on Friday, January 26, 2018, from 12:00pm to 1:00pm, Gerard Magliocca, Indiana University Robert H. McKinney School of Law, will speak on his new book, The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights, in the William G. McGowan Theater, of the National Archives in Washington, DC. 

• Samuel Moyn, Yale Law School, will deliver the 2018 Annual Nicolai Rubinstein Lecture in Intellectual History and the History of Political Thought at Queen Mary University of London on February 8, 2018.  His topic will be “Judith Shklar’s Critique of Cold War Liberalism.”

• The University of Chicago Law faculty is out with its “What Are We Reading?" list.  James F. Simon’s Eisenhower vs. Warren: The Battle for Civil Rights and Liberties, makes it.

• O Mar no Direito Romano: the latest conference from Teoria e História do Direito, Centro de Investigação da ULisboa.

• OUPblog invites you to test your knowledge of the English legal system.

• "Apply for the 2018 Nuclear History Boot Camp," urges the Nuclear Proliferation International History Project of the Woodrow Wilson International Center for Scholars. (So long, Mom; I'm off to study the Bomb?)

• ICYMI: Our recent Guest Blogger Melissa Milewski on Can We Count on the Courts to Curb Trump?  Digging Into Virginia's History of Sterilization, an interview of Lulu Miller, co-host of National Public Radio's Invisibilia.  Michael G. Bazemore Jr., Shaw University, notes the medieval origins of sanctuary cities. Douglas E. Abrams, on The Cuban Missile Crisis, Historian Barbara W. Tuchman, and the “Art of Writing.”

• One week away: the deadline for Newberry Library short-term fellowships is Dec.15, 2018. Details here.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Bazyler and Jarvis's "Law and the Holocaust"

Carolina Academic Press recently published Law and the Holocaust by Michael J. Bazyler, Chapman University Dale E. Fowler School of Law, and Robert M. Jarvis, Nova Southeastern University Shepard Broad College of Law.

Law and the Holocaust: U.S. Cases and Materials uses federal and state court decisions to teach students about one of humanity's greatest calamities. Part I situates the Holocaust as a legal event. Part II focuses on the prosecution of Nazi war criminals. Part III describes the efforts of Holocaust victims to obtain financial compensation through civil lawsuits. Lastly, Part IV considers the extent to which the First Amendment protects modern Nazis. The first casebook of its kind, Law and the Holocaust features 71 principal cases, 295 notes, 26 statutory appendices, 31 photographs, and three maps.

Mitford on Fulton's Lawyers

Emmet’s opinion on Fulton’s steamboat patent (NYPL)

Over the weekend we received an “advance alert” from the American Society of Legal History on the publication of “Patent Property”: The Fulton Lawyers and the Franchising of Progress, by Timothy Milford, St. John's University:

Cadwallader D. Colden and Thomas Addis Emmet could not help but practice intellectual property law: Robert Fulton was their client. Yet their engagement with the subject went far beyond what professional expediency demanded. Their transatlantic backgrounds and careers encouraged their affinity for liberal political economy and for entrepreneurial adventure. On the frontier, in the shadowy zones between early-nineteenth-century empires and land speculations, the line between enterprise and piratical intrigue was easily leapt, and Colden and Emmet were involved in the era’s cross-border confusions. More typically, their work anticipated a world where private business and public improvement were managed in tandem, by interested franchisees, and underwritten by more sophisticated financial arrangements. The defense of Fulton’s patent privileges was an unabashed apology for banks, corporations, and wealth. These lawyers celebrated canals and steamboats and argued that such tangible achievements were impossible without a flexible understanding of property. Their practice was bound up in the franchise model of development and reconciled government patronage with what was then, and is still, a controversial and liberal vision of progress.

Keith's Thoughts on Grotius

Kenneth J. Keith, Emeritus Professor at Victoria University of Wellington, New Zealand, has posted Some Thoughts About Grotius 400 Years On, which was the Seventeenth Annual Grotius Lecture of the American Society of International Law.  It appears in the American University International Law Review 31 (2016):

The author addresses some major challenges facing the world today, by reference to the different roles Hugo Grotius played in his time, the enduring values he highlighted, the need for better implementation of the law, the importance of well designed procedures and the continuing significance of the law of nature and of nations. He concludes with the role of law in dealing with disasters.

de la Rasilla del Moral on the History of International Law Journals

Ignacio de la Rasilla del Moral, Brunel Law School, has posted A Very Short History of International Law Journals, 1869-2018, which is forthcoming in volume 29 of the European Journal of International Law:

The first part presents an overview of the rise of the first international and comparative law journals in the late 19th century followed by an account of the three factors lying behind the relative fall of the comparative element in the title of some of the international law journals published in French, Russian, Spanish, German, Japanese, Italian and English from 1869 to the end of the First World War. The second part surveys the consolidation of international law periodicals in the interwar period under the impact of the establishment of the League of Nations in both Latin-America and Europe including Nordic and Eastern Europe. The third part examines the expansion and main characteristics of international law journals during the Cold war and their geographical extension towards Asia, Oceania and, occasionally, the Middle East and Africa. The fourth part focuses on the main features of the global post-1989 period in the field of periodicals of international law examining the impact on them of the expansion and sectoral specialization of international law, regionalization, globalization, interdisciplinary and the transformative influence of new technologies respectively. The conclusion reflects on the first one hundred and fifty years of international law journals and points to future developments.

Hulsebosch and Golove on Foreign Relations and the Law of Nations in "The Federalist"

Daniel J. Hulsebosch and David M. Golove, New York University School of Law, have posted "The Known Opinion of the Impartial World': Foreign Relations and the Law of Nations in The Federalist, forthcoming in the Cambridge Companion to The Federalist (Jack N. Rakove and Colleen Sheehan, eds., 2017):

Conventional accounts of The Federalist tend to overlook a critical and uncontroversial fact about the Constitution: the principal function it assigned the proposed new government was the conduct of the Union’s foreign affairs. By neglecting this simple point, readers too often are led to miss the forest for the trees. The Federalist’s central task was not to offer a general blueprint for republican government but, rather, to demonstrate the depth of the Confederation’s failures in foreign affairs and to explain why the new federal government would both govern more effectively in that realm and not imperil the republican commitments of the Revolution. This insight, in turn, reveals another: Even when The Federalist focuses on themes that seem far removed from the problem of foreign affairs — whether in analyzing the general principles of federalism or the separation of powers, the importance of energy in the executive or independence in the judiciary, or the deficiencies of popular assemblies — foreign affairs remains its ultimate subject. It was while developing a theory adequate to explain the interrelation between domestic and foreign governance that the authors of The Federalist were led to their deepest insights. Borrowing from Scottish Enlightenment ideas — which they filtered through their political experiences under the Confederation — they rooted their argument in theories of human nature and the social psychology of governance, which they then applied not only to diagnose the causes of the Confederation’s failings but also to explain the institutional arrangements that could overcome them. The result was an account of how the new federal government would be able to limit the influence of the destructive passions over the making of foreign policy and thereby take advantage of the bounded possibilities of peaceable, productive international relations.

CFP: History of International Law in Latin America

[We have the following call for papers from the Albrecht Mendelssohn Bartholdy Graduate School of Law at the University of Hamburg.]

We would like to invite everybody interested in the study of the history of international law in Latin America to participate in our call and to submit proposals for contributions on any of the listed subtopics (see below).  Please send your application in one single PDF file including     your proposal of around 300 - 500 words and a brief CV (indicating also your institutional affiliation) until December 3, 2017, to matthias.packeiser@uni-hamburg.de

The selection of speakers will be based on the quality of their abstracts and the abstract's suitability to the overall topic of the conference.  Selected candidates will be informed by December 8, 2017.

At the conference, each speaker will be granted 20 mins for his/her presentation. Each presentation will be followed by 10 min-discussions.  Unfortunately, we are not able to cover travel or accommodation costs.

List of subtopics after the jump.

Kolla on International Law & the French Revolution

Out this month by Edward James Kolla (Georgetown University) is Sovereignty, International Law, and the French Revolution in the "Studies in Legal History" series with Cambridge University Press. From the publisher:

The advent of the principle of popular sovereignty during the French Revolution inspired an unintended but momentous change in international law. Edward James Kolla explains that between 1789 and 1799, the idea that peoples ought to determine their fates in international affairs, just as they were taking power domestically in France, inspired a series of new and interconnected claims to territory. Drawing on case studies from Avignon, Belgium, the Rhineland, the Netherlands, Switzerland, and Italy, Kolla traces how French revolutionary diplomats and leaders gradually applied principles derived from new domestic political philosophy and law to the international stage. Instead of obtaining land via dynastic inheritance or conquest in war, the will of the people would now determine the title and status of territory. However, the principle of popular sovereignty also opened up new justifications for aggressive conquest, and this history foreshadowed some of the most controversial questions in international relations today.

Praise for the book:

“When the right of peoples to self-determination creates an international law immediately to the advantage of the French Revolution and ultimately for our present world, a brilliant paradoxical book explaining how the French Revolution was a key experiment for our modernity.” -Jean-Clément Martin

“In this brilliant and thoughtful study of international law during the French Revolution, Kolla presents a fascinating history of the principle of national self-determination, as it developed over a century before Woodrow Wilson brought this idea to Versailles. Kolla’s book will be of great interest to historians of modern Europe, political theorists, and legal scholars.” -Dan Edelstein

“Kolla's bold and thought-provoking study transforms our view of the French Revolution's importance for international law. Kolla persuasively argues for positive advances, rooted in the doctrine of popular sovereignty, and for an indirect 'ripple' effect which provided an important foundation for the decisive nineteenth-century advance in international law.” –Hamish Scott

Further details are available here.

Lustig on Governance Histories of International Law

Doreen Lustig, Tel Aviv University Buchmann Faculty of Law, has posted Governance Histories of International Law:

During virtually the same period in which international lawyers began to critically explore the history of their discipline, historians turned to the forgotten pasts of international legal institutions such as the League of Nations, the United Nations, the international human rights system, and related systems of global governance as subjects of historical inquiry, while engaging in a vibrant debate over the meaning of their historiographical shift. Historians describe the turn to the international as a challenge to methodological nationalism. At the same time, international lawyers’ turn to history has been criticized for remaining locked within statist constraints, provoking repeated calls for a ‘global history’ of international law.

This paper explores the link between these statist constraints and the centrality of history of ideas in the history of international law. Studying the history of international law from a history of ideas perspective involves decisions on questions of agency that draw from theoretical predispositions on what international law is. International legal histories often share a vision of international legal history as a history of ideas and, in various ways, the history of ideas as they were advocated and developed by international lawyers. Analyzing the history of international law through the study of the work and thought of prominent international lawyers is tuned to telling a history of law through their theoretical, cultural, and sociological perspectives. This approach therefore remains loyal to their understanding of what international law is and the set of ideas, practices, and institutions they deem relevant for its understanding. The questions they are interested in and the concepts they develop become the questions and concepts we are studying. This methodological perspective provides an intriguing critical window onto international lawyers’ imagined legal world at a particular time and place. However, it also carries important pitfalls. The choice to tell the history of international law through the eyes of those who embrace a particular jurisprudential perspective on the international law field (such as a view that recognizes nothing but states as relevant to their oeuvre) could easily conflate between the historical perspective and the jurisprudential assumptions underpinning the historical inquiry. This could lead to an account of the international legal order as irrelevant to the fate of non-state actors such as corporations, NGOs, minorities, or stateless persons or to ‘non-statist’ aspects of social life such as economic relations or the family. Furthermore, it may be oblivious to ideas about law that may not be confined to such mandarin legality and appear in non-traditional sites and texts.

This paper highlights the relevance of two particular facets in the writings on the history of international law. The first relates to the scholar’s underlying assumptions on the theory of the law, and the second is the theory of law of the agents whose work, ideas, and practices the scholar studies. Bearing in mind the relevance of these theoretical perspectives to our understanding of the history of international law, I wish to explore the link between, on the one hand, the agent we choose to study and her/his theory of the law and, on the other, our own. It further inquires into how studies that move beyond the dominant traditional imagery of the international lawyer as the pre-eminent agent in international legal historiography could change our understanding of international legal history and how might such a shift in understanding, in turn, inform our theoretical predispositions on international law.