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Rechtsgeschichte Legal History Zeitschri des Max-Planck-Instituts für europäische Rechtsgeschichte Rechts R Journal of the Max Planck Institute for European Legal History geschichte g Rechtsgeschichte Legal History www.rg.mpg.de http://www.rg-rechtsgeschichte.de/rg22 Rg 22 2014 119 – 138 Zitiervorschlag: Rechtsgeschichte – Legal History Rg 22 (2014) http://dx.doi.org/10.12946/rg22/119-138 Martti Koskenniemi Vitoria and Us Thoughts on Critical Histories of International Law Dieser Beitrag steht unter einer Creative Commons cc-by-nc-nd 3.0 Abstract How to write (international) legal histories that wouldbetruetotheirprotagonistswhilesimulta- neously relevant to present audiences? Most of us wouldalsowanttowrite»critically«–thatistosay, at least by aiming to avoid Eurocentrism, hagiog- raphy and commitment to an altogether old-fash- ioned view of international law as an instrument of progress. Hence we write today our histories »in context«. But this cannot be all. Framing the relevant »context« is only possible by drawing upon more or less conscious jurisprudential and political preferences. Should attention be focused on academic debates, military power, class struc- tures or assumptions about the longue durée? Such choices determine for us what we think of as relevant »contexts«, and engage us as participants in large conversations about law and power that are not only about what once »was« but also what there will be in the future. □× Fokus focus Martti Koskenniemi* Vitoria and Us Thoughts on Critical Histories of International Law »To refuse to think about the ways in which a concept or text from the remote past might be recovered to do new work in the present is to refuse an overt engagement with contemporary politics.« 1 I. The Historical Turn If forward vision is occluded, and reform ap- pearsmorebusinessasusualthaninspiredsearch The recent, frequently noted increase of interest for a better world, the temptation is great to look in the history of international law has no doubt backwards instead, to try to understand the present been prompted by contemporary concerns. These by reference to the past. How did we get here in the are likely to include the need to put into the first place? Hence the recent flood in historical re- context of some long-term view the transformation search and publication projects. The Journal of the of international law from a narrowly conceived History of International Law is now in its 15th year, »diplomats’ law« into specialized, often technical the number of volumes in the series by the Frank- and economics-driven areas such as trade and furt-based Max-Planck Institute of Legal History investment law, environmental and humanitarian on »Studies in the History of International Law« law and the amorphous forms of regulation gov- (Studien zur Geschichte des Völkerrechts), begun in erning the operations of the international market. 2001, has reached 31, and new series of historical The need may have been accentuated by great works in the English language are commencing crises – the use of force in the former Yugoslavia, at Brill Publishers in the Netherlands and with Iraq and Afghanistan, the »war on terror« and the Oxford University press. A huge Oxford Handbook interminable legalistic debates on the activities of of the History of International Law sawthelightof the UN Security Council on »responsibility to day in 2013.The number of specialized volumes on protect«. The emergence of regional legal systems historical items or persons to have come out in the in Europe but also in Latin America and Africa has present millennium in the English, German, raised questions about whether there is any role for French, Italian and Spanish languages is already a universal international law in a world that seems too large to count. 2 All this activity stands in both increasingly global and increasingly frag- striking contrast to the relative silence in historical mented. Although academic works integrating studies in the 1980s and 1990s when most lawyers new vocabularies of international governance, in- were busy participating in and commenting on the formal regulation and political legitimacy appear post-cold war expansion of international law. with great frequency, efforts to rethink the field so Themotivesbehindthenewhistoriesvary. as to produce new policy-proposals or agendas of Some of them explore the ways in which historical structural reform have tended to fall before they fly, vocabularies such as ius gentium, ius commune or lex proposals for institutional reform turning out stale mercatoria might be helpful in understanding the and uninspiring, part of the very problem they aim present world of post-sovereignty. 3 Others have to deal with. sought to explain the enormous inequalities of * Academy Professor, University of with the situation in 2001 when it was ted new law by exposing its principles Helsinki. The present essay was possible to report that »The subject of in Latin, 3–21, 185–194. See also written for publication in a French ›history of international law‹ as such Waldron (2012). versioninSaada /Xifarras (forth- no longer exists at law faculties in coming 2014/15). Germany and many other countries«, 1Orford (2013) 174. Hueck (2001) 199. 2 A very limited overview appears in 3SeeDomingo (2010), highlighting Koskenniemi (2013). Compare this the historical pedigree of his sugges- Martti Koskenniemi 119 Rg 22 2014 global wealth today by reference to international passed through the »dark ages« and became grad- law’s continuous implication in patterns of colo- uallymorecompleteinthecourseoftheRenais- nial domination and exploitation. 4 The historical sance, enlightenment and the secularization of category of »empire« still has analytical purchase, European political thought. It was certainly no even if some modification of received theories of coincidencethatLaurentthoughtthatthisEuro- dependency and imperial domination might be pean narrative coincided with the »histoiredel’hu- needed. 5 The controversies have reached even the manité«, in accordance with the alternative title apparently unhistorical notion of universal human page appearing from volume 4 onwards. The work rights. 6 Did such rights exist already in Roman law portrayed the law of nations as part of the progress or should one look instead to the 16th century of humanity from separation to unity, led by Spanish theologians or Protestant activists of the Europe in thought and in practice, a narrative in 17th century such as Hugo Grotius and Thomas which the chain of past centuries would peak in Hobbes? 7 What has been the role of the French European modernity. 11 Since then, most histories Déclaration des droits de l’homme et du citoyen of international law were written as evolutionary (1789)? Or are our present rights perhaps better narratives about jurists and philosophers carrying understood as an offshoot of 1970s cold war out a transhistorical conversation contributing to strategies or of the effort to construct an ideolog- the ever fuller realization of »great principles«. ical foundation to 1990s developments in interna- Perhaps the epitome of this way was Robert Reds- tional institutions? 8 Here, too, postcolonial schol- lob’s Les grands principes de droit international ars have insisted on the development of a »geo- (1923) that described the development of interna- politics of knowledge« that would demonstrate the tional law by reference to four great principles – localized and imperial origins of human rights binding force of treaties, the freedom of the state, discourses. 9 equality and solidarity.The principles would travel through history as timeless propositions about how to organize the lives of nations, flourishing II. Into Context in some periods, violated in others, providing a universal standard enabling Redslob to measure The surge of interest in the history of interna- moments of progress or decline from the perspec- tional law has been fed by political debates about tive of a revolutionary republicanism. 12 the character and direction of international law A more recent example of this type of history is today. In itself such interest is not unprecedented. provided by Agnès Lejbowicz’ La philosophie de But present histories tend to differ from older droit international (1979) that describes the devel- works written largely in the mode of classical opment of international legal reflection in terms of »intellectual history«, as explorations of perpetual the perennial tension between »humanity« and themes extending from the origins of Western »sovereignty«, manifested in the writings from political thinking in Greek and Roman antiquity Plato and Aristotle through Grotius, Locke, Rous- to the present. 10 This was certainly the case with seau, Kant and Hegel to the present. For Lejbo- the Histoire de droit des gens by François Laurent, wicz, the tension between the two notions pro- professor of history at the University of Ghent, that vided a timeless standard allowing the evaluation came out in 18 instalments during 1850–1870. of particular thinkers or periods as more or less Laurent conceived the history of the law of nations inclined towards ideas of a united humanity or in terms of rules about statehood, war and diplo- notions of identity and selfhood. 13 Many writers macy that originated in the ancient Middle East, have taken sides in favour of the slow coming 4 See especially Anghie (2003), and 8 For an instant classic, see Moyn 13 Lejbowicz (1979). further e. g. Pahuja (2011). (2010). For recent histories of rights, 5 See e. g. Jouannet /Ruiz-Fabri see further Koskenniemi (forthco- (2007). ming). 6 For a brief overview, see Moyn 9Barreto (2013) 140, 143. (2012). 10 For the classic of this type of history, 7 This is the view of that most insistent see Lovejoy (1936). critic of rights-individualism, Michel 11 Laurent (1851–1870). Villey. See e. g. Villey (1983). 12 Redslob (1923). 120 Vitoria and Us Fokus focus together of humanity, led by international jurists, significance for the history of international law has thinkers of peace, speculating over the way the laws been the object of the greatest recent interest.
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