David Schneiderman, University of Toronto - Faculty of Law, has posted his review of Anne Orford's International Law and the Politics of History (Cambridge 2021), entitled Investment Law and its Others:
Anne Orford’s International Law and the Politics of History takes up international investment law, alongside international trade and human rights law, as an exemplar of how history serves contending sides in debates over the regime’s legitimacy. Appeals to history, in other words, are assimilated into debates over the politics of international law. This review essay argues otherwise that the post 1989 torrent of international investment law scholarship and practice largely steers clear of history. For the most part, rather than seeking assistance from history international lawyers are content to rely on a more archaic formalism that is stuck in the classical legal past. By doing so, they dodge connections to arguments, justifications, and discourses that are reminiscent of a more recent past, associated with colonialism and imperialism. Neglecting this discredited past authorizes investment law’s norm entrepreneurs to pretend as if the contemporary regime has no connection to the ruinous adventures of metropolitan states.
We're pleased to see from this review, Orford's book, Felipe Ford Cole's forthcoming work, and other recent scholarship that the history of international investment law is getting the attention it deserved, if only to have something to point to the next time a historically minded colleague in international economic law asks me why she can't find any.
Here's the publisher's summary of International Law and the Politics of History:
As the future of international law has become a growing site of struggle within and between powerful states, debates over the history of international law have become increasingly heated. International Law and the Politics of History explores the ideological, political, and material stakes of apparently technical disputes over how the legal past should be studied and understood. Drawing on a deep knowledge of the history, theory, and practice of international law, Anne Orford argues that there can be no impartial accounts of international law's past and its relation to empire and capitalism. Rather than looking to history in a doomed attempt to find a new ground for formalist interpretations of what past legal texts really mean or what international regimes are really for, she urges lawyers and historians to embrace the creative role they play in making rather than finding the meaning of international law.
And here are some endorsements:
'In this extensive study, Anne Orford brilliantly traces international law’s engagements with history across a century and more, weaving abstruse methodological disputes into an arresting narrative of political possibility foregone. What is history for? And how should it be practiced by those who manage the world’s legal affairs? Anne Orford makes the case for doing things with history, for history as a political practice which can as well be apologetic as transformative. For Orford, international legal history is contested ground, an open field of political possibility and struggle. Everyone is here - the footnotes alone are worth the price! Her plea for an engaged and politically responsible history attuned to the ambiguities of the historical record is an invigorating challenge to everyone who dabbles - or dives deep - into the history of international law.'
David W. Kennedy - Manley O Hudson Professor of Law and Director, Institute for Global Law and Policy, Harvard Law School
‘This is a hugely important intervention in cross-disciplinary debates about the politics of history in international law and international relations. Anne Orford has written a brilliant defence of heterodox approaches to international legal history against both narrowly empiricist and contextualist approaches and recent ‘new’ histories of international law that are not as new or methodologically robust as they seem. International Law and the Politics of History should have a major influence on scholars and students across International Law, History, and International Relations.’
Patricia Owens - Professor of International Relations, University of Oxford
‘The recent ‘turn to history’ in the study of international law began with high hopes of rapprochement between disciplines yet has too often served to draw battle lines and multiply misunderstandings. Anne Orford now stands authoritatively above the fray, to clarify the stakes of critical practice for lawyers and historians alike. Her patient, engaged scrutiny of the politics of scholarship may not quieten contention but it should make future engagements both more productive and much more firmly grounded.’
David Armitage - Lloyd C. Blankfein Professor of History, Harvard University
‘International Law and the Politics of History is a powerful rejoinder to the critical excesses to which scholarship in international law has been made subject in recent years by historians claiming law’s habitual misrepresentation of its past. Anne Orford knows her own field far better than the complainants, and it shows. Historians would do well to understand better what they poke before they decide to poke it.’
Christopher Tomlins - Elizabeth Josselyn Boalt Professor of Law, University of California, Berkeley
--Dan Ernst
