Thursday, February 15, 2018

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