Tuesday, July 5, 2011

Law and Foreign Affairs History: A SHAFR Roundtable, part 1

Participants in a roundtable at the recent diplomatic history conference, Bringing the Law Back In: New Approaches to the History of the U.S. in the World, have written posts on their presentations which will appear on the blog over the next few days.  We begin with an overview from Daniel Margolies, Professor of History, Virginia Wesleyan College.

The rest is from Dan:

Mary graciously invited me to give the highlights of a roundtable I convened at the annual meeting of the Society for Historians of American Foreign Relations titled “Bringing the Law Back In: New Approaches to the History of the U.S. in the World”.  The session also included Benjamin Coates, Allison Brownell Tirres, and Robert McGreevey.  Each of us presented our ongoing research and approaches and then we had a wide ranging discussion of the potentialities and implications of adding legal frames to foreign relations questions.  Though we were the very last panel of the conference, we had a good audience and a lot of discussion.  

I am going to give a brief rationale for the roundtable and in another post will describe my own comments at the session and each of the others is going to post a brief summary of what they presented.  

In addition to being a forum for our research, I wanted the roundtable to serve as something of a sales pitch to this group of historians to consider new questions of law and also to build new connections to other fields that in turn could benefit from the approaches common in SHAFR but perhaps lesser known elsewhere.  Hopefully the roundtable will signal the beginning of new connections and conversations between legal historians and historians of foreign relations.  Both disciplines would be greatly enriched in terms of both coverage and methodology.  

There long has been a striking (and even quite bizarre) absence of consideration of the law among historians of foreign relations.  This has, frankly, been both a limiting and an isolating factor for the field.  Bringing legal concerns into our approaches is necessary intellectually and it is also a vital way to bring historians into the scholarly and policymaking conversations that commonly occur among legal scholars, political scientists, and others over issues relating to the exercise and tenor of American power.  (In a related way, I have been urging historians of foreign relations to begin posting papers to SSRN, for example, with zero response.  The field moves in new directions slowly).

Even more importantly than policy relevance, fresh consideration of the legal aspects of the U.S. foreign policy will improve scholarly inquiry in the field overall.  Once historians start to frame questions with the law in mind they find the law simply everywhere, operating in ways we have simply tended to ignore.  As Lauren Benton memorably described it in A Search for Sovereignty: “the mythic structural support for the world being turtles all the way down, the cultural context of norms is law all the way down.” (290)  Historians of American foreign relations have a new intellectual and methodological charge to unpack the turtles in policymaking.

Finally, the roundtable was designed to stress that historians of American foreign relations, who focus fundamentally on the question of American power, must freshly consider the law precisely because illegality has been elevated to the core of policymaking through an increasingly unrestrained foreign affairs power.  With the “rule of law” and the realities of power so entangled, historians should energetically bring the law into our study of American power in precisely the local, regional, national, and international scales talked about all weekend in other contexts.