Hilma af Klint, “Buddha’s Standpoint in the Earthly Life”, Nr. 3a, 1920. Public domain via Wikimedia. Edited by Christian Pogies.

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Turning to History – A Political Project?

The Politics of Engaging with the Past – An Interview with Anne Orford, Part I

24.05.2022

In the last 30 years, a considerable part of international legal scholarship has discovered a renewed interest in the history of international law. But is this ‚turn to history‘ perhaps itself a political project? And what are the various interests and imperatives behind it? This is what we want to find out in our interview with Anne Orford.

 

We want to talk to you about your new book and what it tells us about the relationship between international law and the political. Let’s start with the genesis of your book: What motivated you to write International Law and the Politics of History?

Thank you for this invitation to discuss my new book. I was motivated to write it by an encounter that has taken place between international law and history over the past decades. The book is animated by my concern about the effects of that encounter for those of us interested in studying the history and transformation of international law to inform our legal arguments in the present.

As you know, most international lawyers are familiar with the claim that international law has taken a ‘turn to history’, despite international lawyers having been engaged with the past for as long as there have been international lawyers. That ‘turn’ is generally taken to refer to a renewed engagement with history in international legal scholarship that began in the 1990s. As I show in the book, the end of the Cold War marked a moment at which history began to play a more central role in international legal argumentation not just in the academy but also in practice. That turn to history occurred in the context of a newly unipolar world, in which the sole remaining superpower was attempting to remake international law in its image. Both academic and practising international lawyers assembled past texts, concepts, and practices into arguments directed at rationalising, shaping, or resisting the resulting attempts at transforming international law.

And the focus on international law’s history intensified over the subsequent decades, in response to the war on terror, the interconnected financial, energy, climate, food, and humanitarian crises of the early twenty-first century, and the disruptions to the US-led international order posed by the rise of China and the populist backlash against liberal multilateralism. History became a key site of struggle over the nature, meaning, role, and legitimacy of international law.

Could you expand a bit more on how you think this struggle has been playing out?

This struggle played out both in legal practice and in legal scholarship. So on the one hand, international lawyers made use of the past in legal argumentation. International lawyers in practice drew on past events, practices, cases, negotiating histories, and institutional experiments to make arguments in adjudicatory settings, as well as in debates over how to shape, understand, justify, enable, challenge, narrate, or resist the legal transformations that were taking place in a rapidly changing international situation. Appeals to the history of international law initially played a significant role in debates over the legitimacy of expansionist liberal internationalism during the 1990s, and as that project came under pressure, appeals to history played a significant role in the subsequent debates over how to make sense of the perceived crisis of liberal internationalism. Those who sought to defend international law linked its development to progressive narratives, while those who sought to challenge aspects of international law traced its history to less benign origins including imperialism, great power hegemony, capitalist expansion, and neoliberalism. I explore the resulting debates in detail in Chapter 2 of the book. Some of the international lawyers involved in those debates saw themselves as undertaking historical projects, but most did not. In general, the work being undertaken by international lawyers did not conform to professional historical protocols in either style or method and was very pluralist. The aim of that work was unashamedly presentist – to intervene in debates about where international law was and should be heading.

But the legal academy is integrated both into the profession and into debates in the humanities and social sciences. Legal scholarship is enriched, influenced, and shaped by engaging both with legal practice and with work from many other disciplines, including history. And as it happened, just as international lawyers were turning to history, the academic discipline of history was also taking an international or global turn. The result of these two turns occurring at the same time was the gradual emergence of a body of interdisciplinary work concerned with the history of international law.

So the book is a story about what happens when a new approach to the study of a field begins to become central, dominant, and mainstream. As a new sub-field of the history of international law emerged, its proponents sought to appear more professional, the methodological rules of the game began to be defined, risk-averse defensiveness started to kick in, and innovation or nonconformity began to be criticized as unscientific or political or both. Historians began to urge international lawyers to take a more professional approach to the history of international law, where professionalism was equated with the adoption of a specific set of empiricist or contextualist historical techniques. International lawyers were accused of misusing history to produce instrumentalist accounts of the past and called upon to adopt historical best practices or conform to ‘the basic rules of historical methodology’. The turn to history in international law began increasingly to be understood as a project that should be distanced from the argumentative practice of international law and instead measured against empiricist protocols of certain academic historians.

This means that the project of turning to history is thoroughly political from your point of view. Was it this political core of the ‘turn to history’ that inspired you to write the book?

Yes, I was inspired to write the book in response to the idea that historians could somehow offer an impartial correction to the political or instrumental nature of international law’s engagement with the past. This turn to history as method had a series of effects that motivated me to write the book.

The first was that a consensus began to emerge around the question of what counts as the proper methods or the accepted rules for undertaking international legal work with a historical consciousness. For numerous reasons that I outline in detail in the book, it seemed to me that this consensus would get in the way of having the kind of debate about the relation of international law to social, political, and economic transformation that I feel is vital and timely. And for many of the early career scholars with whom I was working, this was already the case. I was seeing that compliance with a set of empiricist and contextualist protocols was becoming the measure of scholarly rigor for historical work on international law. Other ways of writing about the past were being dismissed or ruled out of bounds by the gatekeepers of the field’s doctoral programs, journals, conferences, and publishers.

I know that some established professors have said that they don’t experience this kind of methodological gatekeeping, and as a result can declare nonchalantly that their work is beyond or above method. Most scholars, however, don’t have that kind of privilege extended to them, particularly if they are early career scholars undertaking doctoral work that will be examined, or are submitting their research to be evaluated by appointment panels, journal editors, or grant assessors. In addition, as those of us who spend a lot of time on such assessment panels and promotions committees know well, methodological gate-keeping tends to be applied more often to work that is disruptive or that challenges the status quo in some significant way than to work that is more conservative.

It is interesting that you point out that methodological gatekeeping affects early career researchers more than established professors. Do you see any other disparities in who is targeted by methodological critiques in the context of the turn to history?

Yes, and this was a second issue that motivated me to write the book. These methodological critiques were primarily being directed to the work of scholars who were part of the Third World Approaches to International Law (TWAIL) movement or who engaged with questions related to international law and empire. I think that historians were able to engage with that work because it is written to be accessible, legible, and communicate the complexities of legal debates to a broader audience. Historians of international law largely did not engage with the work of the many other scholars and practitioners who are part of the contemporary international law field and who work with past materials as part of routine legal argument. The effect of that narrowed focus meant that historians of international law mounted energetic critiques of TWAIL scholars or of other international lawyers whose work engages with histories of empire, while the scholarship or practical arguments of mainstream international lawyers went unremarked upon and unchallenged.

Yet much of what TWAIL or other critical international law scholars were criticised by historians for doing, such as using analogies, choosing relevant precedents from a mass of past cases, considering the evolutive meaning of concepts rather than treating them as determined by a given temporal context, or assembling different events and texts into a coherent narrative, is the standard work of mainstream international lawyers. There were, however, no heated articles charging, say, Daniel Bethlehem, Harold Koh, or Christopher Greenwood with betraying historical protocols by reasoning via analogies, using precedents, assembling arguments out of past materials, or engaging in presentism. If TWAIL and postcolonial scholars were being told that their methods were flawed because they failed to conform to historical protocols, it made sense to me to ventilate the claim properly. Otherwise, the effect was to confine the argumentative choices available to one small group whose work is legible to scholars in other disciplines, while leaving mainstream lawyers to continue playing the legal game as usual.

More fundamentally, the specific methods being presented by empiricist historians as ‘basic rules’ of historiography do not represent the only, or in many cases even the best, means of working with past material in legal scholarship. In the book, I explain why that is the case. Empiricist historians claim that they are able to correct or complete the work of international lawyers in at least two key ways. First, historical scholarship is presented as offering interpretations of past legal texts or practices that are impartial and are not informed by the struggle for the meaning of law in the present. And second, history is presented as having a liberating effect on existing claims to legal authority, because it can reveal that international law is a human creation rather than the embodiment of timeless values and inherited traditions. Much of the book is a careful and detailed argument about why empiricist historiography cannot achieve these goals – it cannot offer us either an account of the past that is impartial and free of presentist concerns or a means of liberation from contemporary forms of oppression.

At first glance, one could argue that the increased interest in the history of international law is gratifying. In your book you see it rather critically. In what way?

Initially, as you say, it seemed gratifying that international lawyers and historians shared a growing interest in the past of international law. Not only did this offer areas of substantive overlap, but lawyers and historians seemed to have a common project – complicating overly simplistic accounts of the inevitability of a newly triumphant liberal international law. But as I’ve mentioned, once the history of international law became more institutionalised and more contested, the pluralism of the 1990s began to be met with responses from empiricist historians insisting that there were a set of rules with which legal scholars must comply in order to do proper historical work.

Central to that argument was a set of claims about what ‘the basic rules of historical methodology’ actually were. These were said to include the prohibition against anachronism (that is, placing an object in the wrong time), the call to contextualize past legal texts and concepts (based on the idea that identifying the meaning of legal texts requires situating them in their proper temporal context), the prohibition against presentism (meaning using the present as the lens through which to understand the past), and a concern with the writing of narratives about the past that moved between different periods or treated history on a broad scale. Those rules were presented as means of upholding standards of truthfulness and verifiability, distinguishing the abuses from the uses of the past, resisting the political manipulation of the past, and taking a ‘properly impartial’ view of past legal material.

As I discuss in detail throughout the book, those rules and the broader claims about what empiricist methods can deliver have been challenged within the discipline of history, as well as by art historians, postcolonial theorists, literary theorists, and queer theorists. Indeed, a number of historians have written influential manifestos arguing that an obsession with empiricist methodology as the measure of historical competence is producing a narrow and anti-theoretical orientation amongst historians. The key point to note, however, is that little if any of that scholarship registered in debates about historiography in international law. Overall, as the turn to history in international law intensified, the legitimacy of empiricist historical rules was increasingly treated as given and the desirability of applying those rules to international law treated as self-evident. Any questioning of those rules or their relation to the operation of law was dismissed as trivial, a distraction from weightier discussions, or a sign of the intellectual naivety of lawyers.

To put it a bit provocatively, then, is your book conceived as a rebuttal of empiricist or contextualist approaches to international legal history?

A number of readers have seen the book as a dismissal of contextualist approaches – this was what Alonso Gurmendi took me to be arguing, for example, in his thoughtful posts about the book for Opinio Juris. So to be clear, my argument is not that empiricist histories of international law or contextualist methodologies are irrelevant, misconceived, or without value. Rather, my argument is simply that empiricist historiography does not offer us a method for understanding past legal material that is above or beyond the struggle over the meaning of law in the present, and it not always useful or radical. Deciding when and why to deploy empiricist historical methods is a political and normative question, not a technical one.

For me, to describe an approach as political and normative is not a critique! And, as I say in the opening chapter, the arguments I make in the book about the limits of empiricist historical method should not upset those historians whose professional commitment is to produce an accurate or verifiable account of the past rather than to having any specific form of engagement with the present. I have nothing against such work. The book is not for or about scholars whose professional commitment and goal is to produce scholarship that complies with historical protocols rather than to intervene in the present work of international law. In addition, the work of those people who understand themselves as engaged in a professional historical project often does have relevance for contemporary work in international law without historians themselves having to sign up to that project.

My concern, instead, is with how the mandating of a narrow range of empiricist methods constrains the work of international lawyers who want to study the past in order to inform an engagement with international law in the present. For those whose work has that aim, it is necessary to be open to the possibility that a method or form of critique that was unsettling or transformative in one situation will not necessarily have those effects in another and may indeed make it harder to understand the process of making meaning in international law. As I show in the book, treating one approach to international law or any other powerful field of practice as somehow above the battle makes it harder to think analytically and strategically about its utility for the task at hand.

 

Read Part II of the interview here.

Autor/in
Anne Orford

Anne Orford is Melbourne Laureate Professor and Michael D Kirby Chair of International Law at Melbourne Law School, and Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization at Harvard Law School. Her books include International Law and the Politics of History (CUP 2021), International Authority and the Responsibility to Protect (CUP 2011), Reading Humanitarian Intervention (CUP 2003), and the co-edited collection The Oxford Handbook of the Theory of International Law (OUP 2016). She is Visiting Legal Fellow at the Australian Department of Foreign Affairs and Trade for 2022-23.

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Sué González Hauck

Dr. Sué González Hauck is a postdoctoral researcher at DeZIM Institute Berlin and an editor at Völkerrechtsblog.

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Hendrik Simon

Hendrik Simon is Researcher at the Peace Research Institute Frankfurt and Lecturer at Goethe University Frankfurt. Among his main publications is ‘The Myth of Liberum Ius ad Bellum. Justifying War in 19th-Century Legal Theory and Political Practice’, in The European Journal of International Law (2018). He is an editor at Völkerrechtsblog.

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1 Kommentar
  1. Thank you for this really insightful interview!
    I would love to hear how Ms. Orford (whose work has been tremendously helpful for my thesis) sees the implications of the political/ambivalent nature of IL’s history for such (more or less) concrete legal doctrines as intertemporality.

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