p a r t v

METHODOLOGY AND THEORY

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c h a p t e r 3 9

A H IS T ORY OF I N T E R NAT IONA L L AW H IS T OR I E S

m artti k oskenniemi

1. Introduction

Ernest Nys (1851–1920), the fi rst professional historian of international law, expressed in his Les origines du droit international of 1893, confi dence that international law was developing in a benefi cial direction. The Hegelian dialectic between the national and the universal would be resolved in favour of the latter. The three great ideas that had dominated world history—progress, freedom, and the ‘idea of humanity’—may not immediately lead to a world State, but they did allow the hope that war would soon be extinct as an instrument of politics. 1 Nys began his narrative of the origins of international law with the European renaissance but accepted that there had been international law since the ‘Phoenicians’ and in fact, his teacher, Francois Laurent (1810–87) had devoted the fi rst four of his 18-volume Histoire de droit des gens et des relations internationales to ‘Oriental’ empires, Greece, Rome, and early Christianity. 2 For Nys and Laurent, and for the international lawyers who were busy organizing

1 E Nys Les origines du droit international (Castaignes Bruxelles 1894) at 404–5 . 2 F Laurent Histoire du droit des gens et des relations internationales Tôme Premier: L’Orient (Durand

Paris 1851) .

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themselves into a profession at the time they wrote, not only was the history of inter-national law really the same as the history of humanity, but ‘l’histoire de l’humanité considerée au point de vue du progrès qu’elle accomplit vers l’unité’. 3 History led from separation to unity, its intrinsic teleology expressed by and accomplished through international law.

The cosmopolitan tradition to which these two histories belong frames the ideo-logical context of the establishment in Belgium (where both men acted as professors) of the Institut de droit international in 1873. It drew inspiration from a providential view of history: even the worst humanitarian disasters pointed to a better future, a more enlightened, united humanity. They agreed with Immanuel Kant that universal history had a ‘cosmopolitan purpose’ that it shared with law: a federation, initially among free nations, later perhaps among free individuals, would form history’s telos . 4 To become an international lawyer would not be to operate a few technical rules about diplomacy or warfare but to engage with a project for subordinating all the world under law—a law that would recognize all humans as bearers of rights, citizens of their nations, organized as secular States, equally participating in a public law gov-erned State-community. This was a project for progress, for a global modernity—the dream of the entire world one day resembling Europe’s idealized image of itself. 5

One cannot know international law, according to this view, without understand-ing it as the transformation of humankind’s collective experience into a redemptive future. General histories and opening chapters of textbooks in the 20th century thus often began like Laurent, with Sumerian city-states or the laws of Manu in ancient India, followed up by a discussion of the ‘international’ relations of Greek city-states as well as an overview of Roman expansion as articulated in Roman law, ius fetiale and ius gentium . From observing the dearth of legal arrangements the Middle Ages, they would move on to the Spanish scholastics of the 16th century, the Protestant Reformation, and the Peace of Westphalia (1648) as the symbol of the modern States-system, the hidden objective of prior history. 6 Accounts of ‘modern’ (post-Westphal-

3 F Laurent Histoire du droit des gens et des relations internationales Tôme Quatrième—Etudes sur l’histoire de l’humanité (Durand Paris 1855) at v. Both titles are also included in the second edition of the work, published in Brussels by Méline, in Paris by Librairie internationale 1861–70.

4 I Kant ‘Idea for a Universal Reason with a Cosmopolitan Purpose’ in I Kant Political Writings (H Reiss ed and HB Nisbet trans) (CUP Cambrigde 1991) especially seventh-ninth propositions, 47–53; see also M Koskenniemi ‘On the Idea and Practice for Universal History with a Cosmopolitan Purpose’ in B Puri and H Sievers (eds) Terror, Peace and Universalism. Essays on the Philosophy of Immanuel Kant (OUP Oxford 2007) 122–48 .

5 T Skouteris The Notion of Progress in International Law Discourse (Springer The Hague 2010) . 6 Thus the long entry on Völkerrechtsgeschichte in the Strupp-Schochauer Wörterbuch is quite openly

teleological: the discussion of Western antiquity and the Middle Ages focuses on the slow emergence of aspects of (modern) statehood, namely entities that are formally independent and equal. Thus the sec-tion on the Middle Ages concludes that ‘[n]och war der Weg zum durchgebildeten souveränen Staat . . . weit’, W Preiser ‘Völkerrechtsgeschichte’ in K Strupp and HJ Schlochauer Wörterbuch des Völker-rechts. Dritter Band (De Gruyter Berlin 1962) 680–703 at 690; for a very similar discussion, see eg A Wag-ner Geschichte des Völkerrechts (Kohlhammer Stuttgart 1936) .

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ian) law would then discuss Emer de Vattel’s rejection of the hypothesis of Civitas Maxima (1758) before focusing on the consolidation of European diplomacy at the Congress of Vienna 1814–15. Accounts of 19th-century international law would sup-plement relative peace in Europe and colonial expansion with the way jurists of the period tended to ‘exaggerate’ the sovereignty of their States, turning to a ‘positivism’ that neglected international law’s natural home in a universal teleology. Nevertheless, late-19th century institutions such as the Red Cross (1864), the international unions, and the two Hague Peace Conferences (1899, 1907), these accounts would insist, paved the way to the League of Nations and the United Nations, and to the advancement of the discipline’s historical project. If the period since the 1960s was one of ‘chang-ing structure’, 7 this signifi ed the move from statehood to some kind of universal existence—perhaps ‘globalization’—that had not yet quite declared its legal form.

Of course, this account is only a sketch, if not a caricature. But it tries to capture something of the kind of teleology that is mediated by ‘modern’ international law texts to students and professionals. It is part of a larger historical understanding of development as ‘progress’ that was shared by late-19th century European elites but that we meet today at institutions of higher learning everywhere. The narrative is expected to inculcate in the members of the professional classes a certain manner of refl ecting on the world and on one’s historical place in it. Cultural markers such as ‘antiquity’, ‘the Renaissance’, or ‘globalization’ are as much part or it as are technical terms such as ‘cannon-shot rule’, ‘Concert of Europe’, or ‘humanitarian intervention’. Although all such notions bear the marks of their European origin, they enable law-yers from all over the world to communicate with each other by invoking widely shared historical associations and a normative teleology in which an idealized Europe, coded as ‘nationhood’, capitalism, ‘modernity’, or ‘rule of law’, marks the horizon of their shared imagination. 8

A full history of international legal histories would require writing a history of international law proper, of its express or implied self-historicizations, the way its institutions embody particular teleologies, its rules turn into precedent or ‘crystallize’ into customs and become parts of professional vocabularies. This is obviously beyond the scope of this chapter. 9 So I propose to begin with a sketch of forms of historical

7 W Friedmann The Changing Structure of International Law (Steven & Sons London 1964) . 8 The view of an idealized Europe as the indispensable horizon of modern historical consciousness is

well presented in D Chakrabarty Provincializing Europe. Postcolonial Thought and Historical Difference (Princeton University Press Princeton 2000) .

9 A brief survey of international legal historiography is in A Nussbaum A Concise History of the Law of Nations (2nd edn Macmillan New York 1954) at 291–5 . Recent discussions of the state of history in the discipline include M Craven ‘Introduction: International Law and its Histories’ in M Craven , M Fitz-maurice and M Vogiatzi (eds) Time, History and International Law (Nijhoff Leiden 2007) 1–25 and R Lesaffer ‘International Law and its History: The Study of an Unrequited Love’ in M Craven , M Fitz-maurice and M Vogiatzi (eds) Time, History and International Law (Nijhoff Leiden 2007) 27–41 , as well as I Hueck ‘The Discipline of the History of International Law’ (2001) 3 Journal of the History of Inter-national Law 194–217 .

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946 methodology and theory

consciousness as they emerged from early Christianity to the rise of natural law in the 17th century, and the professional international legal histories of the (long) 19th cen-tury (Sections 2–4), followed by an overview types international legal history in the 20th and 21st centuries (Section 5). Focus will be on the way problems in each type of historiography has inspired alternative historical narratives, illustrating the uses of international law in assisting human communities to imagine their political origins and the manner of their relations with each other.

2. Ius Gentium as Historical Law

Roman defi nitions of ius gentium that located the topic within natural law, (‘what nature teaches to all animals’), 10 entailed the assumption that it had no more of a his-tory than natural history, akin to that of plants or animals. Other Roman jurists, however, addressed ius gentium as the positive law that had developed to deal with relations between Romans and foreigners on a universal basis, such as wars, the sepa-ration of nations, and commercial and private law institutions that would refl ect relatively stable needs of government and commerce everywhere. 11 Throughout the early Christian age, defi nitions of ius gentium oscillated between unchanging natural law and universal (or at least largely shared) institutions of civilized humanity. Bar-tolus of Saxoferrato frankly stated that the law of nations proceeded in two parts; from natural reason on the one hand (such that promises ought to be kept), and from the customs of the various nations ( usu gentium ) on the other. 12 His distinction between ius gentium primaevum and ius gentium secondarium was used by many later writers, including Grotius, to distinguish between legal institutions based on ‘right reason derived from the will of the gods’ and time-bound but still universal ‘consen-sus of all nations’. 13

Within the Respublica Christiana, the historicity of political or legal institutions was always limited by the eschatological view that was politically expressed in the theory of the Four Monarchies (Babylonian, Persian, Greek, and Roman) in the Book of Daniel

10 Justinian Justinian’s Institutes (trans with an Introduction by P Birks and G McLeod trans and Introduction) (Cornell University Press 1987) lii (37).

11 ‘Ex hoc iure gentium introducta bella, discretae gentis, regna condita, dominia distincta, agris ter-mini positi, aedifi cia collocata, commercium, emptiones venditiones, locations conductiones, obliga-tions institutae: exceptis quibusdam que jure civili introductae sunt’ Dig. 1.1.5.

12 M Scattola Das Naturrecht vor dem Naturrecht. Zur Geschichte des ‘ius naturae’ im 16. Jahrhundert (Niemeyer Tübingen 1999) at 205–7 .

13 Eg H Grotius Commentary on the Law of Prize and Booty (MJ von Ittersum ed) (Liberty Fund Indi-anapolis 2006 [1605–1607]) Prolegomena at 25 .

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that prophesized the end of the world at the collapse of Rome. This not only prolonged the life of the empire but also hindered the emergence of a historical consciousness that would look beyond the apocalyptic. The medieval mind inserted itself in the his-tory of Roman antiquity with the emperor as its head. 14 This view was only destroyed in the 14th and 15th centuries when humanists such as Machiavelli and his lawyer-friend Guicciardini began to write histories of Rome and of Italy with the intention of depicting change and drawing ‘lessons’ from the past to present politics. 15

Humanist historiography entered international law from two directions. A reform-ist Catholicism in 16th-century Spain used the scholastic frame to take a position on such contemporary issues as expansion in the Indies and the creation of a world-wide net of commercial relations. According to the Genesis, all humans had been created free and equal and shared ownership in common. 16 And yet, princes were claiming absolute rule over their territories and global commerce operated through private property. To accommodate that reality into their Christian ideals, the theologians began to argue that the provision by natural law for common ownership did not actually prohibit its contrary. 17 This allowed them to justify public and private power in terms of a properly historical ius gentium that was expressed in a (tacit) agreement by the ‘greater part’ of the members of community in the course of a long time. 18 In his massive Tractatus de legibus (1612) Francisco Suárez 19 explained how diplomacy, professional warfare, and the global networks of trade had been

…[g]radually introduced throughout the world, through a successive process, by means of propagation and mutual imitation among the nations, and without any special and simulta-neous compact or consent on the part of all the peoples. For the body of law has such a close relationship to nature and so befi ts all nations, individually and collectively, that it has grown, almost by a natural process, with the growth of the human race. 20

14 C Fasolt The Limits of History (University of Chicago Press 2005) at 18–20 . 15 N Machiavelli The Discourses (on Livy) (B Crick ed) (Penguin Harmondsworth 2003) ; F Guiccar-

dini The History of Italy (S Alexander ed and trans) (Princeton University Press Princeton 1969) . The two were cited as examples in A Gentili’s description of the qualities that were needed of a good ambassa-dor—a historical sense that would combine with a philosophical spirit. As a further example he would refer to Guicciardini’s History of Italy that celebrated Lorenzo de Medici’s balance of power policy that succeeded in maintained Italy’s independence until the end of the 15th century. A Gentili De Legationibus Libri Tres, Volume Two. The Translation (GJ Laing trans) (OUP Oxford 1924) at 158 , 161.

16 F de Vitoria Comentarios a la Secunda secundae de Santo Tomás (V Beltrán de Heredia ed) (Sala-manca 1934/1952) vol III: De justitia Q 62, A 9, at 67; D de Soto De iustitia et iure libri decem — De la justicia y el derecho en diez libros (PVD Carro Introduction, PMG Ordonez trans) (Seccion Teo logos Juristas Instituto de Estudios Poli ticos Madrid 1967) book IV Q 3 A 1 (295a-b).

17 ‘Concedimus ergo quod nullius fuit praeceptum quod omnia essent communia, sed solum fuit conces-sio’ Comentarios (n 18) Q 62, A 1, para 20, at 77; for the early canon law origins of this argument, G Tierney ‘Permissive Natural Law and Property: Gratian to Kant’ (2001) 62 Journal of History of Ideas 384–8 .

18 Comentarios (n 18) Q 62, A 1, fn 23, at 79. 19 See the contribution by A Brett ‘Franciscus de Vitoria (1480–1546) and Francisco Suárez (1548–1617)’

in this volume. 20 F Suárez ‘On Law and God the Lawgiver’ [‘De legibus’] in F Suaréz Selections from Three Works (GL

Williams trans) (Clarendon Oxford 1944) book II, ch XX, para 1, at 351.

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At the same time, in France and the United Provinces, especially within the Protes-tant camp, an ‘elegant jurisprudence’ began to stress the historicity of Roman (civil) law and regarded old customs as expressions of a resurgent nationalist (and anti-papist) ideology. Like the Spaniards (whom he greatly admired), the young Hugo Grotius 21 learned to separate a historical ius gentium from natural law and, in his mature work of 1625, associated it with the consensus gentium , amenable to study by what he called the a posteriori method. 22 Grotius viewed history as a reservoir of edifying examples especially from Greek and Roman antiquity. 23 In this, Grotius’ writing resembles that further humanist genre, raison d’état, popular especially among counter-reformation intellectuals such as the former Jesuit Giovanni Bot-ero (1544–1617). The point of the latter was to turn Machiavelli on his head—that is to say, by appropriating Machiavelli’s arguments to distinguish between ‘bad’ and ‘good’ reason of States, the latter being fully compatible with Christian ethics. 24 The raison d’état writers, like Grotius in his advocacy for the Dutch East India Com-pany, made sure to argue that providence would guarantee that the good path would in due course coalesce with the more useful one. After all, as Grotius wrote in his brief to support the penetration by the VOC into the East Indies: ‘God Him-self by His special favour opened up that part of the world to the Dutch, whose commerce was then on the verge of ruin’. 25

3. Natural-Law Histories

The problem with natural law had been its ostensibly a-historical character. By con-trast, Grotius’ follower, the Saxon Samuel Pufendorf 26 understood natural law itself historically, as rational conclusions drawn by human beings who are predominantly

21 See the contribution by P Haggenmacher ‘Hugo Grotius (1552−1608)’ in this volume. 22 H Grotius The Rights of War and Peace (R Tuck ed) (Liberty Fund Indianapolis 2005) book I The

Preliminary Discourse XVIII, at 94. 23 ibid The Preliminary Discourse XLVII, at 123–4; in addition, see the contribution by K Tuori ‘The

Reception of Ancient Legal Thought in Early Modern International Law’ in this volume. 24 For overviews, see R Bireley The Counter-Reformation Prince. Anti-Machiavellianism or Catholic

Statecraft in Early Modern Europe (University of North Carolina Press 1990) and R Descendre L’état du monde. Giovanni Botero entre la raison d’état et géopolitique (Droz Genève 2009) ; on Jesuit reason of state specifi cally, see H Höpfl Jesuit Political Thought (CUP Cambridge 2004) at 84–185 .

25 Commentary on the Law of Prize and Booty (n 15) ch XV, 465. Or as he puts it, ‘nothing base is truly advantageous, whereas nothing honourable can fail to be expedient by virtue of the very fact that it is honourable’ Commentary on the Law of Prize and Booty (n 15) ch XV, 463.

26 See the contribution by K Haakonssen ‘Samuel Pufendorf (1632–1694)’ in this volume.

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motivated by self-interest from their existential situation, that is to say, from their weaknesses; in order to survive, they need to join together. 27 His new theory of socia-bility, operative already in a state of nature outlined a historical view of human com-munities as artifi cial creations, freed from Christian eschatology and Roman law. Pufendorf used that view to reject the allegedly timeless Aristotelian constitutional categories in his 1667 analysis of the status of the Roman-German Empire. The Empire was simply what history had produced in terms of the relationships between its constituent units. 28 In his main work a few years later ( De jure naturae et gentium , 1672) Pufendorf generalized this view into a theory of modern statehood as an instru-ment through which self-interested individuals pursued their search for security and welfare. 29 To be successful, they would need to be well aware of the histories of their State and its rivals. It was no accident that Pufendorf himself then entered into the service to courts of Sweden and Prussia in order to produce political histories of both countries. If the law of nations consisted, as Pufendorf assumed, of rational conclu-sions that humans would make of their existential situation (‘offi ce’), then it coa-lesced with what history taught as wise policy. 30 This became the basis for the ‘universal histories’ taught by professors of natural law at the new universities at Halle and Göttingen in the course of the 18th century to Europe-wide audiences. 31

One of them, Johann Jakob Schmauss from Göttingen published in 1751 a nearly 700-page history of European treaties from the 14th to the 18th centuries. He inter-preted European history from the perspective of the perpetual French desire for ‘uni-versal monarchy’ to which others reacted by seeking to uphold the balance of power. 32 It was followed two years later with a three-part critique and construction of natural law. In long quotations from authors from Greek antiquity to the middle of the 18th century, interspersed by his own explanations and critiques, Schmauss narrated the progress of natural-law literature, concentrating on the philosophical contrast between voluntarism and rationalism and on the different understandings of the role ‘instinct’ in the law of sociability. 33 For Schmauss, natural law was a ‘system of

27 For a useful account, see P Laurent Pufendorf et la loi naturelle (Vrin Paris 1982) at 117–45 . 28 S Pufendorf The Present State of Germany (E Bohun and MJ Seidler eds) (Liberty Fund Indianapolis

2007) . 29 S Pufendorf De jure naturae et gentium, libri octo (trans as On the Law of Nature and Nations , in eight

books ) (W Oldfather trans) (Oxford Clarendon Press 1934) . 30 A Dufour ‘Pufendorfs föderalistisches Denken und die Staatsräsonlehre’ in F Palladini and G Har-

tung (eds) Samuel Pufendorf und die europäische Frühaufklärung (Akademie Verlag Berlin 1996) 122 . 31 See especially N Hammerstein Ius und Historie. Ein Beitrag zur Geschichte des historischen Denkens

an deutschen Universitäten im späten 17. und 18. Jahrhundert (Vandenhoeck & Ruprecht Göttingen 1972) .

32 JJ Schmauss Einleitung zu der Staats-Wissenschaft I: Die Historie der Balance von Europa, der Bar-riere der Niederlande (Göttingen 1751) .

33 JJ Schmauss Neues System des Rechts der Natur (Göttingen 1753) . The fi rst book is the long history of the subject-matter; the second ( Dubia juris naturae ) a response to certain criticisms of natural law and the third ( Neues Systema des Rechts der Natur ) a sketch of Schmauss’ own theory that builds on the origin of natural law in human will that is directed by the intellect to grasping the divinely based rules of sociality.

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socialitas’ and a thoroughly Protestant science. But although Pufendorf ’s application of reason to sociability succeeded in developing something like a universal jurispru-dence, it still lacked a credible account of obligation. There had to be scientifi c rules about sociality that intellect would grasp and impose on the will so as to make them binding. 34

While German lawyers were turning to history at their universities, French writers were using the vocabulary of the raison d’état to develop a sociological view of Euro-pean statehood that sometimes expressed itself in a legal idiom. 35 For example, the Principes de négociations published by Abbé de Mably as part of the second edition of his Droit public de l’Europe fondé sur les traités (1757) gave an account of European international relations since the Middle Ages in terms of European monarchs’ unlim-ited and irrational ‘ambition, avarice and fear’. He developed a theory of European public law as a ‘science of negotiations’ that would allow everyone to benefi t if only all sovereigns paid close attention to their ‘fundamental interests’. 36 In learning to do that, it would be useful for statesmen to study past treaties in their context and to gather from this how States had succeeded or failed in these efforts. Like Montesquieu, Mably associated rational government with close attention to the nation’s ‘real inter-ests’. History would assist as a storehouse of examples of the way European monarchs had let their passions overrule their judgment.

This is the rather static role history plays also in Emer de Vattel’s Droit des gens (1758) where it would illustrate the operation of rules of reason that would guide princes from their ‘passions’ towards the rational government of the State with the view of its ‘perfectionment’. 37 History was either a literary history of natural-law writ-ings or then examples from past practices that would illustrate passion’s dangers and the benefi ts of cool reason. With the Scottish Enlightenment, and above all with Adam Smith, the natural-law tradition would be accompanied by a theory about the development of all societies in four stages from hunter-gatherers into practitioners of peaceful commerce. But this would turn the school from law to political economy; the benefi ts of free commerce would achieve what natural lawyers had always desired, the welfare and security of the State. 38

The ‘commercial turn’ marked the end of the abstract rationalism of the natural-law tradition. A new generation, represented by Georg Friedrich von Martens, also from

34 ibid 274–6. 35 See generally, E Thuau Raison d’état et pensée politique à l’époque de Richelieu (Albin Michel Paris

1966 /2000). 36 GB de Mably Principes des négociations pour servir d’introduction au droit public de l’Europe

(M Belissa ed) (Kimé Paris 2001) at 45–50 . 37 E de Vattel Le droit des gens ou principes de la loi naturelle appliqués à la conduite & aux affaires des

nations & des souverains (London 1758) . For Vattel’s life and work, see the contribution by E Jouannet ‘Emer de Vattel (1714−1767)’ in this volume.

38 I Hont ‘The Languages of Sociability and Commerce: Samuel Pufendorf and the Theoretical Foun-dations of the “Four-Stages” Theory’ in I Hont (ed) Jealousy of Trade. International Competition and the Nation-State in Historical Perspective (Harvard University Press Harvard 2005) 159–84 .

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Göttingen, vigorously attacked the revolutionary principles of a new Déclaration de droits des gens that had been proposed to the National Assembly in Paris as ‘ leeres Wortgepränge ’. 39 According to Martens, history taught us Realpolitik , that even if independence and equal-ity of nations were unobjectionable in their abstract formulation, they were seldom hon-oured in actual practice. Without consciousness of that history, tragedy would follow. 40 The peoples of the world were simply too different for any universal (‘rational’) law of nations to emerge. Instead, a practical community among Europeans had grown up from antique origins through the progress of religion, voyages of discovery, and the rise of a system of political hierarchy and equilibrium. The peace of Westphalia and Utrecht had begun ‘a new and memorable epoch of positive law of nations’. 41

[C’]est donc dans l’histoire générale et particulier des Etats de l’Europe . . . qu’on doit puiser l’histoire de l’origine et du progrès du droit des gens conventionnel et coutumier; histoire qui n’a pas encore été traitée avec tout le soin qu’elle merite, quoiqu’on aïe commence à s’en occuper avec success. 42

In a footnote to that sentence, Martens referred to the fi rst full-scale post-naturalist history of international law by Robert Ward (1795) whose two-volume work had opened with a touching admission by its author that once he had collected all the treaties, cases and other factual materials, he had to answer the question about their binding force. 43 Although he could see how the practices of Christian nations might become binding to Christians, he found no basis on which to claim that they were binding everywhere. Besides, ‘natural law’ meant different things to different people so that it was futile and misleading to treat it as a universal category. Only religion could provide certainty; where religions differed, unity was impossible. Accordingly, there must be ‘a different law of nations for different parts of the globe’. 44 The fi rst part of Ward’s history expounded the theory of its basis in the ‘shared morals and shared religion’ of particular ‘classes of nations’ (Chapters I–V) while the second ( Chapters VI – XVIII ) focused on the law of nations within Christian Europe. 45

Ward’s history of (European) law of nations was a relativist narrative about Euro-pean progress. It began with the Greeks and the Romans, the ferocious manners of

39 GF von Martens Einleitung in das positive europäische Völkerrecht auf Verträge und Herkommen gegründet (Dieterich Göttingen 1796) at ix.

40 ibid xvi; see further M Koskenniemi ‘Into Positivism: Georg Friedrich von Martens (1756−1821) and Modern International Law’ (2008) 15 Constellations 198–200 .

41 GF von Martens Prècis du droit des gens moderne de l’Europe fondé sur les traités et l’usage (Dieterich Göttingen 1801) at 15 .

42 ibid 16, 18. 43 R Ward An Enquiry into the Foundation and History of the Law of Nations from the Time of the Greeks

and the Romans to the Age of Grotius (Butterworth London 1795) 2 vols. 44 ibid vol 1, xii–xv at xiv. 45 As Ward stated, among Christians, religion provided ‘the only certain foundation for that code

which is observed by Christian, in other words, by European nations’. An Enquiry into the Foundation (n 46) vol 1, xl, xxxi–xxxiii. For what Ward calls his ‘destruction’of the idea of the universality of the law of nations, see especially Chapter II of the work, 35–119.

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the ‘Scandinavians’, followed by ‘the most cruel maxims’ and ‘bloody and savage cus-toms’ of the Middle Ages. 46 But even as the law of nations was unknown and habits were raw, individual rulers (such as Charlemagne) and institutions such as chivalry, feudalism, and Christianity provided civilizing infl uence—though its peaceful mes-sage was often undermined by papal ambition and the unjust treatment of barbari-ans. 47 More recently, treaties and diplomatic practices had softened the customs of war and even occasionally provided channels for pacifi c intercourse between ‘sets of nations’. These had been articulated as a ‘science’ fi rst with Grotius, then Pufendorf, Vattel and the other great jurists, the heroes of Ward’s narrative. 48

4. The Long 19th Century

For Martens and Ward, already, natural law retreated into the position of a back-ground justifi cation for taking pragmatic focus on the practice of (European) States. Somewhat later, Ake Manning’s Commentaries on the Law of Nations (1839) found the meaning of history in the coming into consciousness of the fact that God wanted humans to be happy and that this meant doing what was most useful. 49 This utility-based law had now been ‘acknowledged as binding by the states of Europe and of North America’—suffi cient reason for concentrating on what they had done in prac-tice. 50 A full-scale narrative of this type was produced by the American diplomat Henry Wheaton in his Prize Essay to the Institut de France of 1839. 51 This was not a literature review but an account of the diplomacy, wars, and peace settlements in Europe, combined with an overview of some of the writings of the principal jurists of each period. No doubt refl ecting Wheaton’s American background much attention was given to the law of the sea: prize law, neutrality and contraband, right of visit, and maritime warfare. A discussion of Rousseau’s and Bentham’s peace plans ended in a resigned acceptance of the paradox that peace appears possible only in the presence of an alliance so strong that would itself become a danger to its weaker members. 52

46 An Enquiry into the Foundation (n 46) vol 1. 47 Eg ibid (n 46) vol 2, 111–14, 125–43. 48 ibid 606–28. 49 O Manning Commentaries on the Law of Nations (S. Sweet London 1839) at 58–60 . 50 ibid 76. 51 H Wheaton Histoire de progrès de droit des gens depuis la Paix de Westphalie jusqu’au congrès de

Vienne (Brockhaus Leipzig 1841) . Although the competition had concerned only progress in the law of nations since Westphalia (showing the central role 1648 already then played in the discipline), Wheaton added to it a part on the earlier period, too, which he continued to expand in later editions. For Whea-ton’s life and work, see the contribution by LH Liu ‘Henry Wheaton (1785–1848)’ in this volume.

52 ibid 258.

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Like Martens, Wheaton thought that the French revolutionary wars had illustrated the de facto limits on the independence of nations. His sympathy towards France did not prevent him from seeing in the Vienna arrangement a progressive change, accom-panied by the expansion of international law to the North and Central American States and by the renouncement ‘by the Mohammedan nations of the Orient’ of their violent practices. 53

German lawyers such as Johann Ludwig Klüber and August Wilhelm Heffter repeated much of this in the opening pages of their widely read textbooks. For both, the history of international law consisted of the treaties and practices of European nations that were parts of European civilization itself, held together by Christianity’s cultural and moral power. If the political struggles between European powers often appeared to relegate law into literature, this had not prevented the work of Grotius from becoming a European ‘ Völker-Codex ’. 54 The public law of Europe had emerged from European sources and the behaviour of European nations. It would therefore be unhistorical to apply it in the ‘Orient’ (with the duly noted exception of Turkey’s 1856 acceptance into ‘the European community of nations’). 55 International law has come to where it now was, wrote Klüber, by the civilization of customs, and the intensive relations between European governments, but also by the infl uence of academic teaching, the activities of politicians, journalists, scientists, as well as public opinion, assisted by the spread of the freedom of the press. 56

The two indispensable literary histories of international law in this period were Heinrich Ludwig von Ompteda’s Literatur des gesammten sowohl natürlichen als posi-tiven Völkerrechts (2 vols 1785) and Carl von Kaltenborn’s Vorläufer des Hugo Grotius auf dem Gebiete des ius naturae et gentium (1848). Both works associated progress in international law in its development into real ‘science’ (although they differed in what this meant). Ompteda highlighted an intermediate ‘modifi ed-natural’ interna-tional law as a kind of legal sociology of statehood: without awareness of its existen-tial situation, no nation could progress, and it was the task of law to assist in this. 57 After sketching an ideal presentation of the parts of international law and their rela-tions, he produced a wide-ranging literature review (in 328 paragraphs) of works ranging from histories of learning in general to histories of law and international law,

53 ibid 444–5. 54 AW Heffter Das europäische Völkerrecht der Gegenwart (Schröder Berlin 1867) at 12 . Klüber treates

the ‘literary history’ separately from the diplomatic one, and, like the rest, regards Grotius as the founder of the discipline. He is followed up by the standard cast of characters: Zouche, Hobbes, Pufendorf, Wolff, and, as the predominant modern writer, von Martens. Curiously, Vattel is not mentioned by him at all. JL Klüber Droit des gens moderne de l’Europe (Aillaud Paris 1831) at 22–7 .

55 ibid 13. Klüber divided in three periods: antiquity; the (middle period) of the popes and the emperor and the modern period, commencing in late-15th early 16th century. Unlike Martens and Heffter, Klüber does not mention Westphalia or Utrecht as crucial moments in this story.

56 Droit des gens moderne de l’Europe (n 58) 29. 57 HL von Ompteda Literatur des gesammten sowohl natürlichen als positiven Völkerrechts (Montags

Regensburg 1785) 2 vols, at 9–12 .

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and from general works, collections of treaties, and other offi cial acts, to textbooks, pamphlets, and increasingly more detailed treatments of particular legal institutions and rules. Ompteda appreciated the older works by Oldendorp, Vázquez, and Suárez and observed that with all his needless displays of learning, Grotius had put the sub-ject on the fi rm footing of sociability. With Christian Wolff 58 and JJ von Moser, a sci-entifi c study of its two elements, natural and positive law, could fi nally commence. 59

Kaltenborn’s work was inspired by the crisis of natural law that had begun in late-18th century and to which there seemed to be no end in sight. As he had done in his widely read Kritik des Völkerrechts , he accredited this state of things to the absence of methodologically rigorous, systemic and historically conscious treatments of the fi eld. The dual science of natural and international law needed to be understood as an ‘organic whole’ in which all principles would serve some useful function for the whole body. 60 This had been impossible during the Catholic era when religion had been confused with law and no distinction had been made between natural and positive materials. 61 Even Aquinas’ contribution had been ‘unclear, incomprehensible and full of jumps and contradictions’. 62 A change was inaugurated only by the writers of the ‘reformation period’ (roughly 1517–1625). 63 Religious freedom and the freedom of the human person would now be instituted as an autonomous basis for a scientifi c sys-tem of natural and international law. 64 Grotius had done in politics and law what Luther had done for religion: opening the door for the search for freedom in Rechtsle-ben . Altogether, Kaltenborn disparaged the contribution of Catholicism to interna-tional law and saw his own work as an effort to make the protestant heritage better known. 65

But Wheaton and Kaltenborn, Martens, Klüber, and Heffter were lawyers of an old world. After 1848, liberal activists sought increasingly to use the law to infl uence the course of European modernity. This is the context where, in the aftermath of the Franco-Prussian war (1870–71), a group of lawyers decided to commence the propagation of cosmopolitan ideas and reforms as members of the profession of ‘international law’ through the establishment of the Institut de droit international (1873). It was in this same context where Nys and Laurent identifi ed the history of international law with the progress of humanity itself. Nys had taught legal history

58 See the contribution by K Haakonssen ‘Christian Wolff (1679–1754)’ in this volume. 59 ibid 171–3. 60 C von Kaltenborn Vorläufer des Hugo Grotius auf dem Gebiete des ius naturae et gentium (Mayer

Leipzig 1848) 2 vols, vol 1, at 27 : ‘ . . . als ein organisch Ganze erscheinen, wovon die einzelnen Doktrinen wesentliche Glieder und nur vollends die Zeitabschnitte in der Entwicklung die Haupttheile und Glied-massen, Kopf oder Rumpf, Fussgestell, Herz oder Nieren bilden’.

61 ibid vol 1, 185–90. 62 ibid vol 1, 43. 63 ibid vol 1, 24. 64 ibid vol 1, 49–50. 65 Thus the second volume of the work is a compilation of quotations from pPotestant writers, J Old-

endorp, N Heming, and B Winkler. See Vorläufer (n 64) vol 1, 231–49 and vol 2.

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and jurisprudence at the Université Libre de Brussel from 1885 to 1898 and was there-upon appointed to professorship of international law at that same university. His studies include The Papacy Considered in relation in Relation to International Law (1879), Le droit de la guerre et les précurseurs du Grotius (1884), Les theories politiques et le droit international en France jusqu’au XVIIIème siècle (1890), l’Esclavage noir devant les jurisconsultes et les cours de justice (1893) and Le droit international, les principes, les theories, les faits (3 volumes 1904–1906, 1912). Nys also translated into French the works of Jamer Lorimer and John Westlake. Like the other members of the Institut, Nys viewed international law as part of Europe’s civilizing contribu-tion to the world. With his colleagues he engaged in long debates about the nature of ‘Oriental’ cultures and about the conditions of their future entry as full subjects of international law. In L’état independent de Congo et le droit international (1903) he vigorously defended the practices of his King, Léopold II of the Belgians against the malevolent accusations he attributed to commercially motivated interests in Britain. 66

Les origins du droit international (1893) set down the narrative that legal historians have followed ever since. Nys traced the roots of the discipline to the Roman ius gen-tium, as discussed in civil and canon law from the 12th to the 15th centuries in connec-tion with the jurisdictional disputes between the papacy and the empire. William of Ockham and Marsilius of Padua in the 14th century created ‘the programme of the future’—the emergence of independent secular States. 67 International law grew up in part from Christian debates on the just war, in part from inter-sovereign activities in commerce, arbitration, diplomacy, and the uses of the seas. Spanish scholastics were the originators of international law. But it was Grotius who became the ‘founder of the science of international law’ owing to the way he joined the values of humanism and secularism with defi nite abandonment of universal empire. 68 Nys also confessed himself an admirer of England’s liberties and ‘progress’ that for him meant civiliza-tion, secularism, humanism, and the universal freedom of trade. The greatest obsta-cles to progress had been papacy and religious warfare. But with humanism and Protestantism the Church had been fi nally accommodated to the balance of power as the new—benefi cial—principle of European order. 69

Like Nys, Henry Sumner Maine was a professional historian whose brief period in the Whewell Chair in Cambridge was initiated in 1887 by an inaugural lecture where Maine depicted the history of international law in terms of the spread of Roman law all over Europe. As far as the science was concerned, only Grotius and Vattel merited

66 For these debates, see M Koskenniemi The Gentle Civilizer of Nations. The Rise and Fall of Interna-tional Law 1870–1960 (CUP Cambridge 2002) at 11–178 and especially at 155–66.

67 ‘Les réformes qu’ils avaient rêvées furent menées à bonne fi n; la société laique se dégagea de plus en plus des chaines don’t l’Eglise avait voulu le charger; l’Etat moderne se constitua en dehors et au-dessus des confessions réligieuses’ Les origines du droit international (n 1) 42.

68 ibid 10–12, 401–5. 69 ibid 164.

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mention. 70 ‘We may answer pretty confi dently that its rapid advance to acceptance by civilised nations was a stage, though a very late stage, in the diffusion of Roman law over Europe’. 71 The result was a law of Christian nations:

[T]hey form together a community of nations united by religion, manners, morals, human-ity and science, and united also by the mutual advantaged of commercial intercourse, by the habit of forming alliances and treaties with each other, of exchanging ambassadors, and of studying and recognising the same writers and systems of public law. 72

Like Adam Smith, Maine shared the view that the history of human societies (or of ‘progressive societies’) had developed through ‘stages’ from less to increasingly more sophisticated forms, famously ‘from status to contact’. 73 The ‘savages’ of Africa and the ‘barbarians’ of the Orient (to borrow Lorimer’s terminology) manifested forms of life that Europeans had long ago left behind. As Locke had written ‘in the beginning, all the world was America’. 74 Maine agreed but was attracted by a geo-logical metaphor that saw the incipient forms of later laws in earlier, more primi-tive stages. It was the task of legal history, he felt, to examine these primitive forms so as to generalize about the laws of legal development that would be applicable everywhere. Maine’s generalizations brought unity to a world that was anxious about the variety of forms of experience that widening international contacts had brought to the notice of European public. The variations could now be explained as different stages in a single, uniform process. Order and hierarchy would be restored with the satisfactory result that the Europeans would fi nd themselves at the top. 75

Perhaps the best-known work on international legal development in this vein was Sir Paul Vinogradoff ’s series of lectures in Leiden from 1923. Here he sketched a view of fi ve historical types of international law, ranging from the Greek city-states to the Roman ius gentium, the law of the Respublica Christiana, sovereign statehood to contemporary developments pointing to a ‘political union’ that would be ‘wider and more just than that of absolute territorial sovereignty’. 76 In Vinogradoff ’s matrix ‘collectivistic organization’ would become the highest stage of international law. 77

70 His indictment of the others was severe: ‘… it must be confessed that some were superfi cial, some learned and pedantic, some were wanting in clearness or thought and expression, some were little sensi-tive to the modifi cations of moral judgment produced by growing humanity, and some were simply reactionary’. HS Maine International Law. A Series of Lectures Delivered before the University of Cambridge 1887 (2nd edn Murray London 1915) at 2 .

71 ibid 16. 72 ibid 34. 73 HS Maine Ancient Law (Dorset Press 1968 [1861]) at 141 . 74 J Locke Two Treatises on Government. Second Treatise (introduction by W Carpenter) (Everyman’s

London 1984) para 49, at 140. 75 See JW Burrow Evolution and Society (CUP Cambridge 1966) and The Gentle Civilizer of Nations

(n 70) 74–6. 76 P Vinogradoff ‘Historical Types of International Law’ (1923) 1 Bibliotheca Visseriana 1–70 at 69. 77 ibid 5.

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His stages were premised upon a critique, shared with much of inter-war sociology, of the destructiveness of liberal individualism. Not Smith’s ‘commercial society’ but a centrally planned modern bureaucracy would become the ideal of academic intelligentsias. 78

Vinogradoff ’s typology expressed a widespread view among international lawyers that the outbreak of the war in 1914 had been caused by excessive emphasis of national sovereignty, an irrational and morally corrupt form of egoism. This, they pointed out, had now become an obvious anachronism. Economics and technology were tying States together into an ever intensifying set of dependencies, prompting a ‘move to institutions’. 79 The histories of inter-war international law were overwhelmingly written as prefaces to a call for more integration, more international institutions with an increasingly expanding jurisdiction.

The modernizing ideology behind the League of Nations presupposed that the entire world would develop in the footprints of Europe and that it was the task of international law to assist in this process. The international law profession inter-preted this so as to view economics and technology as world-unifying factors. An up-to-date law should facilitate their operation against formal and anachronistic moorings in sovereignty. 80 Only few questioned this. Conservative Germans such as Erich Kaufmann did stress the absence of ‘social ideals’ from Western law’s shal-low internationalism. Like Heinrich Triepel, he saw international law as at best a coordinating devise: the deep history of humankind would remain with nation-States. Carl Schmitt wrote these assumptions into his Nomos der Erde (1950) that assimilated the enthusiasm for technological and economic progress with Anglo-American imperialism. 81 Soviet jurists, likewise, failed to see in ‘bourgeois’ interna-tional law any historically solid project for the future. If they accepted to deal with the West through it, this was only as a strategic concession; while a completely dif-ferent teleology would realize itself through class struggle and the impersonal power of productive forces. 82

But the teleology of Western law was seriously put to question only by decoloniza-tion. The enthusiasm with which the non-Western world grasped at its formal sover-eignty after 1960 has often been condescendingly dismissed as an expression of the post-colonial elites’ lust for power. Nevertheless, the critique of the ‘false universality’

78 Eg P Wagner History and Theory of the Social Sciences (Sage London 2001) at 7–53 . 79 D Kennedy ‘The Move to Institutions’ (1987) 8 Cardozo Law Review 841–988 . 80 Eg A Alvarez La codifi cation du droit international—ses tendences, ses bases (Pedone Paris 1912) and

G Scelle ‘Théorie du gouvernement international’ (1935) Annuaire de l’institut international de droit public 41–112 .

81 E Kaufmann Das Wesen des Völkerrechts und die Clausula rebus sic stantibus (Mohr Tübingen 1911) ; C Schmitt Der Nomos der Erde im Völkerrecht des Ius publicum europeaum (Duncker & Humblot Berlin 1950) ; for these debates, see The Gentle Civilizer of Nations (n 70) 249–65 and 415–37. See also the contri-bution by B Fassbender ‘Carl Schmitt (1888−1973)’ in this volume.

82 For a discussion, see C Miéville Between Equal Rights. A Marxist Theory of International Law (Brill Leiden 2005) at 75–289 .

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of prevailing ideas about universal values or a world community has been invoked suffi ciently often in the past fi fty years so as to question the narratives of civilization and progress on which Western triumphalism has relied.

5. Histories of International Law in the 20th and 21st Centuries

During the fi rst half of the 20th century, much of the history of international law was cut across by a jurisprudential debate on its nature or binding force. 83 Before one could write a history of international law one needed to know what kind of a subject it was. Here a rigorously conceived ‘will theory’ was confronted by ethically or socio-logically inclined views that derived obligation from some universal morality or gen-eralization about human needs. Each came with a particular philosophy of history that projected international law as a refl ection of some deeper normative truth about the world—perhaps the ‘sovereignty of the state’ (on which the will theory largely relied), perhaps some underlying trend towards economic or technological progress, civilization, or humanitarian reason. Historiography became a victim of philosophi-cal conviction: each side could point to aspects of the past that supported its vision as legal history’s determining force.

According to the will theory, international law had been, was, and would, in the foreseeable future, be what States wanted it to be. To provide a response to the ques-tion, ‘what then of its binding force?’ the Austrian public lawyer Georg Jellinek devel-oped in the 1880s his massively infl uential autolimitation view ( Selbstverpfl ichtungslehre ) that compared international law with constitutional law. Nobody could enforce the constitution against the Parliament, either, without this making the constitution any less real. 84 Others compared it with ‘primitive law’ that allegedly had no institutional safeguards either but arose from spontaneous custom. Both views implied defi nite historical perspectives: the constitutional comparison resuscitated the view of inter-national law as external public law and aligned its past with that of (European) Staats-gewalt . The primitive law analogy pointed to international law’s growth towards ever

83 I have discussed much of this literature in M Koskenniemi From Apology to Utopia. The Structure of International Legal Argument (Reissue with a new epilogue CUP Cambridge 2005) at 307–25. The debate was waged with particular intensity in Germany from the last years of the 19th century. For one contem-porary overview of the themes, see JL Kunz ‘On the Theoretical Basis of the Law of Nations’ (1925) 10 Transactions of the Grotius Society 115–41.

84 G Jellinek Die rechtliche Natur der Staatenverträge (Hölder Vienna 1880).

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more institutionally complex forms. But there was never any serious study of such analogy so that Hersch Lauterpacht had little diffi culty in the 1930s to dismiss it as a superfi cial attempt to defend the will theory itself. The complex diplomatic and judi-cial techniques of international law in no way resembled ‘primitive law’. The attempt to salvage the will theory (and the theory of sovereignty) by appeal to the ‘special character’ of international law was simply incoherent: it was not binding because it emerged from some hypothesized ‘State will’, but because it refl ected the needs of an international community. 85

Lauterpacht was a natural lawyer and an admirer of John Locke and the British tradition of ‘liberalism and progress’. 86 In this respect, he was like most other inter-war internationalists. For naturalists such as the Viennese Alfred Verdross, access to the law was provided by the Great Books tradition so that the history of interna-tional law, too, would have to be conceived as a literary history. In Die Einheit des rechtlichen Weltbildes , Verdross argued that 19th-century ‘positivism’ had broken with the universal ethos of the tradition by creating a wall between domestic and international law. Verdross’ objective (which he shared with his teacher Hans Kel-sen) was to argue ‘sovereignty’ into a mere technical competence that had been allo-cated to the State by an overriding universal moral-legal order, rightly understood as the (implicit) constitution of the world. 87 For him, like for the 16th- and 17th- cen-tury naturalists, there was in a sense no history of international law at all—only a history of the slow coming into consciousness of the unity of the law as a refl ection of humanity’s moral identity. This view turned history into moral progress lessons. In 1932 Cornelius van Vollenhoven saw the principal dynamic in political history constituted of the widening organization of peace and its constant rupture by national egoism and war:

[L]’histoire du droit international équivaut d’une épopee, à une lutte grandiose entre deux forces élémentaires. D’un côté on voit un droit de paix, faible au début, mais qui a une besoin de vivre, la volonté de vivre, une foi indéracinable dans sa vocation et son avenir. De l’autre côté on découvre forces pussantes et brutales de la guerre et d’un prétendu droit de guerre. 88

‘Two elementary forces . . . ’. This was literature, of course, but not great literature. Van Vollenhoven narrated the history of international law as a pendulum movement

85 H Lauterpacht The Function of Law in the International Community (Clarendon Oxford 1933) at 403–23. 86 H Lauterpacht International Law and Human Rights (Prager New York 1950) ; H Lauterpacht ‘The

Grotian Tradition of International Law’ (1946) 23 British Yearbook of International Law 1–53 ; see further M Koskenniemi ‘Hersch Lauterpacht 1897–1960’ in J Beatson and R Zimmermann (eds) Jurists Uprooted. German-Speaking Emigré Lawyers in Twentieth-Century Britain (OUP Oxford 2004) 601–62 , and the contribution by IGM Scobbie ‘Sir Hersch Lauterpacht (1897−1960)’ in this volume.

87 A Verdross Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung (Mohr Tübingen 1923). For Kelsen, see the contribution by B Fassbender ‘Hans Kelsen (1881−1973)’ in this volume.

88 C van Vollenhoven Du droit de paix. De iure pacis (Nijhoff La Haye 1932) at vii–viii.

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between hopes and disappointments about the coming peace. 89 Like so many others, he viewed the League as a promising but fragile step towards the peaceful organiza-tion of humankind, still threatened by its members’ nationalism. Himself a Dutch-man, he was conscious of no irony when he depicted history’s great dialectic play itself out in the 1302 war between Philip the Fair and the Flemish peasants, when his examples of evil men came from Spain, or when the ended his book by uplifting sen-tences from Grotius and William of Orange! 90

Perhaps the best-known post-war international law history, A Concise History of the Law of Nations by the German-born Arthur Nussbaum, the fi rst edition of which came out in the United States in 1947, was written in a completely different spirit. 91 Nussbaum regarded anything beyond diplomatic acts, treaties, and case-law as uto-pian moralism, warning ‘against the defl ecting infl uence of ideologies and hope’. 92 He was concerned only to lay out, as clearly and simply as possible, the ‘law prevailing among independent states’. 93 The work was free from teleological generalizations or those of ‘civilization’ of such earlier works as those of van Vollenhoven and merely sought to tell the history of the law of nations ‘wie es eigentlich gewesen [ist]’. Like many other refugee intellectuals from Europe, Nussbaum had become a political realist. Meanwhile old lawyers on the old continent were facing the future by turning to the past. In his 1962 overview of the ‘newest developments’, Ulrich Scheuner expressed the largely shared view (especially in post-war Germany) that the unity of the law, based on ethical principles, was now asserting itself despite challenges (as he saw them) from the communist bloc and the newly independent States. In his view, and in the view of many others, ‘positivism’ and ‘Eurocentrism’ had now been over-come. Through the institutions of the United Nations international law would now help to set up a universal Rechtsgemeinschaft . 94

International law histories of late 20th century have usually combined accounts of the development of the States-system with brief excursions into a well-defi ned circle of canonical texts. The dominant voice has sounded a sociological register: ‘ Ubi

89 In the long period 1492–1780 van Vollenhoven saw no progress at all. Its spokesperson was Vattel whose work ‘… est tout aussi déstructif d’un droit de paix que ne l’avait été l’ouvre d’un Pzarre, d’un Cortés, d’un duc d’Albe. Il étale l’autre vice original, celui de vouloir déguiser la mauvaise intention sous les paroles de charité sublime’ Du droit de paix (n 94) 99.

90 Many lawyers were also frustrated by what seemed an endless and inconsequential dispute between the naturalists and the positivists. Thus, for example, de Louter looked for a pragmatic compromise between the positions so starkly juxtaposed in van Vollenhoven. Instead, Louter regarded sovereignty and community like opposite currents of electricity, both necessary for the proper operation of the whole. Naturalism and positivism, the pull to community and the desire of freedom were equally true expressions of the existential state of international law, divided between opposite but equally valuable poles, like human life itself. J de Louter Le droit international public positif (Imprimerie de l’Université Oxford 1920) 2 vols, at 13, 15.

91 A Nussbaum A Concise History of the Law of Nations (2nd edn Macmillan New York 1954). 92 ibid x. 93 ibid ix. 94 U Scheuner ‘Völkerrechtsgeschichte. Neueste Entwicklung (seit 1914)’ in Wörterbuch des Völker-

rechts (n 7) 754–5.

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societas, ibi ius ’—although just what it means to say that the law ‘refl ects’ anterior social developments has seldom been broached in any depth. Much of this history is geared in a policy-oriented direction as prologue to this or that agenda of reforms. This is intellectually hazardous ground, and the fact that there is not much by way of a historical sociology of international relations renders recourse to the cliché of ‘refl ection’ easily as ideology. Two major currents of contemporary historical writing may be distinguished, both with many variations highlighting some aspects of the past while leaving others necessarily in the shadow.

The fi rst type of history is that where international law appears as wholly enmeshed in the worlds of war and peace, diplomacy, ‘development’, and the suc-cession of systems of government over the world. In this conception, international law is part of the business of ruling human communities, humanizing State prac-tice, maintaining balance of power, facilitating the movement of ambassadors, or enabling the acquisition of colonies, for example. For this type of ‘political history’, well-represented in international relations literature, law is usually but a minor aspect of State policy. We meet it during the inter-war period in Alfred Zimmern’s characterization of international law as a ‘decorous name for the convenience of the Chancelleries’ that was at its most useful when it embodied a ‘harmonious mar-riage between law and force’. 95 Zimmern’s account of the involvement of interna-tional law in the League constituted a powerful prologue to dismissals of the period’s hopeless ‘idealism’. 96 Later writings of the ‘English School’ have examined international law as part of the dialectic of ‘order’ and ‘justice’, serving useful (though perhaps not essential) ‘functions’ in the international world. 97 Its role has often been thought to lie in upholding the idea of an ‘international society’ in the conditions of ‘anarchy’. 98

The diffi culty with narratives about international law as a dependent variable of politics lies in the normative frame they project on the past. How far back is it use-ful to read wars and political relations through legal concepts? Many histories begin with the Sumerians or Assyrians three millennia ago, ancient India and the ‘Chi-nese world’. But as Steiger has queried, is there really much common ground between an instrument in which one party refers to itself as the ‘sun’ to the others, and the 1969 Vienna Convention on the Law of Treaties? 99 Historians have responded to the charge of anachronism by noting that even if the expression ‘international

95 A Zimmern The League of Nations and the Rule of Law (1918–35) (Macmillan London 1936) at 94, 95. 96 ibid 445–6. 97 H Bull The Anarchical Society. A Study of Order in World Politics (Macmillan London 1977) at 127–

61 , 159. 98 H Bull ‘The Importance of Grotius in the Study of International Relations’ in H Bull , B Kingsbury

and A Roberts (eds) Hugo Grotius and International Relations (OUP Oxford 1990) 71–5. 99 H Steiger ‘From the International Law of Christianity to the International Law of World Citizen—

Refl ections on the Formation of the Epochal History of International Law’ (2001) 3 Journal of the His-tory of International Law 181–93.

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law’ may not have been present in those periods, old documents testify to the pres-ence of inter-group relationships that are suffi ciently similar to today’s interstate relations to allow such generalization. In the same breath, however, it is usually affi rmed that a law of the (European) States-system is naturally a product of the 15th and 16th centuries and that even if it is only a species of a genus, it still has spe-cial importance as ‘a lasting legal order’, giving permanent form to international relations. 100 The hold of familiar concepts remains strong, and is taken as largely unproblematic.

Periodization, too, remains problematic. This is most evident in the construc-tion of grand ‘epochs’ refl ecting the hegemony of a leading power. Inspired by political realist (perhaps ‘Weberian’, perhaps ‘Marxist’, perhaps post-colonial) theory, this approach sees history’s driving force in a single determining cause, an ‘empire’, radiating its infl uence to all corners of the (legal) world. The leading contemporary oeuvre of this type is Wilhelm G Grewe’s Epochen des Völkerrechts (1984), inspired by Carl Schmitt’s notion of Nomos and followed in many other works. 101 In their effort to avoid ‘utopian’ speculation, these authors put forward a ‘realist’ ethics of cool statecraft, or even a ‘political theology’ as the appropriate perspective for legal analysis. The fact that realist statecraft never expressly articu-lated its strong ethical commitments shrouds it in a pretence of neutrality and objectivity that constitutes a powerful incentive for adopting it as a frame for his-torical study.

Realist history dismisses religions, cultures, and ideologies as well as the autonomy of legal institutions as a mere ideological superstructure underneath which operate determining structures of political, economic, and military power. Thus it remains oblivious to the way structures of (political, economic, military) knowledge are formed and distributed and contribute to the formation of ruling preferences and challenges. Its reliance on unrealistically homogenous ‘epochs’ ignores that even strong imperial powers rarely have a uniform view of how to sustain their infl uence; they are internally split—say between advocates of formal and informal empire—so that counter-hegemonic actors may often operate in relative independence from the centre or play its divisions against each other. This is why post-colonial histories that used to interpret everything about the world as a consequence of imperialism or colonial exploitation have been supplemented by narratives that emphasize the way ‘semi-peripheral’ actors from Latin America, Japan, Turkey, and China have, from

100 Eg KH Ziegler Völkerrechtsgeschichte (Beck Munich 1994) at 4, 12–42 ; A Truyol y Serra Histoire de droit international public (Economica Paris 1995) at 1–3 , 5–18; S Laghmani Histoire du droit des gens. Du jus gentium imperial au jus publicum europaeum (Pedone Paris 2003) at 7.

101 WG Grewe The Epochs of International Law (M Byers trans) (de Gruyter Berlin 2000). The ‘epochal account’ has been followed eg in Völkerrechtsgeschichte (n 106) . The main inspiration is of course Der Nomos der Erde (n 86). I have critiqued Grewe’s book in book reviews in (2002) 51 International and Comparative Law Quarterly 746–51 and in (2002) 35 Kritische Justiz 277–81. See also the contribution by O Diggelmann ‘The Periodization of the History of International Law’ in this volume.

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late-19th century onwards, adopted and adapted international law of European origin so as to further domestic agendas, constrain Europeans and to transform European legal categories. 102 Rather than examining law by reference to a single centre or origin, these histories aim to grasp it as a platform or a vocabulary that is used by different actors for contradictory purposes.

Realist history also tends to view non-European communities as passive objects of European policy. True, studies have traditionally addressed diplomatic relations in ancient near-Eastern civilizations, the Chinese world and India. 103 But these have been studies of past worlds or perhaps, as Bederman suggests, of the ‘intellectual origins’ of today’s ‘mature’ international law. 104 The works of Charles H Alexandrow-icz, RP Anand, and TO Elias have sought explicit corrections to Eurocentrism by examining legal practices among Asian rulers and treaty relations between African communities even before the entry of the Europeans. 105 To the extent that these stud-ies have been written in the vein of ‘they, too, had an international law’, they may be objected as once again projecting European categories as universal. The studies in the 1920s by Lindley and Goebel, though very useful and in some of their detailed accounts frankly irreplaceable, were written completely from the perspective of the empire. 106 More recent studies have focused on the encounter with Europe itself, seeking to bring forth a non-European perspective or by highlighting the distortions and

102 From a very wide collection of recent works, see eg AB Lorca ‘Universal International Law: Nine-teenth-Century Histories of Imposition and Appropriation’ (2010) 51 Harvard International Law Journal 475–552 ; L Obrégon ‘Completing Civilization: Creole Consciousness and International Law in Nineteenth-Century Latin America’ in A Orford (ed) International Law and its Others (CUP Cam-bridge 2006) 247–64 ; U Zachmann Krieg und Ordnungsdenken im völkerrechtlichen Diskurs Japans, 1919–60 (Habilitation thesis Ludwig Maximilians University Munich 2010) ; see also T Ruskola ‘Legal Orientalism’ (2002) 101 Michigan Law Review 179–234 and U Özsu ‘Agency, Universality, and the Poli-tics of International Legal History’ (2010) 51 Harvard International Law Journal 58–72 ; for a program-matic statement, see eg Y Onuma ‘When was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilizational Perspective’ (2000) 2 Journal of the History of the International Law 1–64.

103 Eg W Preiser Macht und Norm in der Völkerrechtsgeschichte (Nomos Baden Baden 1978) ; DJ Beder-man International Law in Antiquity (CUP Cambridge 2001) ; A Altman ‘Tracing the Earliest Recorded Conceptions of International Law’ (2001) 11 Journal of the History of International Law 125–86 and 333–56.

104 International law in Antiquity (n 113) 1. 105 CH Alexandrowicz An Introduction to the History of the Law of Nations in the East Indies (16th,

17th and 18th Centuries) (Clarendon Oxford 1967) ; RP Anand Studies in International Law History: An Asian Perspective (Nijhoff Leiden 2004) ; RP Anand ‘Maritime Practice in South-East Asia until 1600 and Modern Law of the Sea’ in RP Anand (ed) International Law and the Developing Countries (Nijhoff Dordrecht 1987) 53–71 ; RP Anand Development of Modern International Law and India (Nomos Baden Baden 2005) ; TO Elias Africa and the Development of International Law (Oceana Leiden 1972).

106 MF Lindley The Acquisition And Government Of Backward Territory In International Law: Being A Treatise On The Law And Practice Relating To Colonial Expansion (London 1926) ; J Goebel The Struggle For The Falkland Islands. A Study of Diplomatic History (Yale University Press New Haven 1927).

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ulterior motives of conquerors, the ‘false universality’ represented by European con-cepts and practices. 107

‘International law and empire’ has now become perhaps the most popular item of international law history. When Jörg Fisch wrote Die europäische Expansion und das Völkerrecht in 1984, he was still a path-breaker—even as the overwhelming Anglocen-trism of the fi eld has left this basic work relatively unread. 108 The burgeoning litera-ture on the empire that is being produced today remains predominantly focused on the British world-system. 109 Recent writing on European penetration in North Amer-ica and the Southern hemisphere has focused on the dispossession of the native pop-ulations. 110 Regarding the Spanish empire, the works by Luciano Pereña remain largely unknown outside Spain. Though not completely free of imperial apologetics, they, as well as the twenty-nine volumes of the Corpus Hispanorum de Pace (CHP), edited by Pereña, are an invaluable (though again, little known) source of materi-als. 111 In Italy, Luigi Nuzzo has thrown a post-colonial eye on the legal languages of colonization and conquest and new works by Gozzi and Augusti deal with the encoun-ter of non-European world with European law. 112 In Germany, older and newer his-torical writing covers especially the law and morality of the Spanish conquest, with emphasis often on the writings of the Spanish theologians. But Germany’s own colo-nial period (1880–1919) is still largely untreated from the perspective of international

107 The classic here is A Anghie Imperialism, Sovereignty and the Making of International Law (CUP Cambridge 2005) ; see also E Jouannet and H Ruiz-Fabri (eds) Le droit international et l’impérialisme en Europe et aux Amériques (Société de droit et de législation comparée Paris 2007). Other shorter works include eg JT Gathii ‘Imperialism, Colonialism and International Law’ (2007) 54 Buffalo Law Review 1013–66. The many works of works of N Berman may also be classed in this group. See now especially N Berman Passions et ambivalences: le nationalisme, le colonialisme et le droit international (A. Pedone Paris 2008) , also available in English as Passion and Ambivalence. Colonialism, Nationalism and International Law (Brill, Leiden 2011).

108 J Fisch Die europäische Expansion und das Völkerrecht (Steiner Stuttgart 1984). 109 Eg C Sylvest ‘Our Passion for Legality: International Law and Imperialism in Late Nineteenth-

Century Britain’ (2008) 34 Review of International Studies 403–23 ; D Armitage The Ideological Origin of the British Empire (CUP Cambridge 2000) ; K MacMillan Sovereignty and Possession in the English New World. The Legal Foundations of Empire 1576–1640 (CUP Cambridge 2006) ; the essays in D Bell (ed) Victorian Visions of Global Order. Empire and International Relations in Nineteenth-Century Political Thought (CUP Cambridge 2007) and S Dorsett and I Hunter (eds) Law and Politics in British Colonial Thought. Transpositions of Empire (Palgrave-Macmillan London 2010).

110 For two useful works with a legal angle, concentrating on the dispossession of the Indians, see RA Williams The American Indian in Western Legal Thought (OUP Oxford 1990) ; S Banner How the Indians Lost their Land. Law and Power on the Frontier (Harvard University Press Harvard 2005).

111 For Pereña’s own summary, see L Pereña La idea de justicia en la conquista de América (Mapfre Madrid 1992). For a very different kind of work exploring international law’s uses in Fascist Spain, see I de La Rasilla , ‘The Fascist Mimesis in Spanish International Law and its Vitorian Aftermath (1939-1953)’ (2012) 14 Journal of the History of International Law 2.

112 L Nuzzo Il linguaggio giuridico della conquista. Strategie di controllo nelle Indie spagnole (Jovene Napoli 2004) ; G Gozzi L’Occidente e l’ordine internazionale (Giappichelli Bologna 2008) ; E Augusti ‘The Ottoman Empire at the Congress of Paris: Between New Declensions and Old Prejudices’ in L Back-Varela (ed) Crossing Legal Cultures (Meidenbauer Munich 2009) 503–19.

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legal history. Finally, much of the political and economic history of empire, including novel works in ‘world history’ is full of legal implications, though rarely treated in a systematic fashion. This applies to accounts of the ‘ideologies’ of empire as well as on the legal practices sustaining imperial administration. 113

Histories concentrating on political events and imperial power often do not address the criteria for the choices they make. Nor do they bring out the fact that narration is about ‘choice’ in the fi rst place. Therefore, a second type of history is needed, one that Nussbaum thought there had been too much of—namely the his-tory of international law as the succession of writings by philosophers, theologians, diplomats, political thinkers, and lawyers that provide the conceptual articulations (and often criticisms) of prevailing practices. The writing of history as the history of doctrines (or of the ‘science of international law’) is a well-established genre. 114 Most late-18th and early-19th century histories were like this but even in the 1990’s Truyol y Serra discussed universalist thinkers from Zoroastrian philosophers to the Stoics, and from Grotius to Kant. 115 While these works have sometimes taken a hagiographic attitude towards their protagonists, no naïve views about the excep-tional power of individuals need necessarily be entailed. A particular writer may also be interesting as a specimen of a type, and used to illustrate a tendency more widely shared in the relevant period. 116 For example, Ernst Reibstein’s 1949 work on the Spanish 16th century jurist Fernando Vázquez de Menchaca has the purpose to examine all the world of pre-Grotian ius gentium (but also 18th century natural law) through the work of one infl uential, though largely forgotten scholar in whose work the naturalist grounding of the law was accomplished in an exemplary way. 117 Likewise, Peter Haggenmacher’s 1983 Grotius et la guerre juste is much more than merely an account of what Grotius had said about the just war: it is in fact a history of all the key concepts used by Grotius in his works of 1604–6 and 1625, ranging from ‘just war’ to ‘ ius gentium ’ and ‘sovereignty’, from Roman and Canon law to the beginning of the 17th century. 118

In the ‘history of legal thought’, mention should be made of the very large literature on the classics of Western political theory that have been important for international law: the Spanish scholastics, Vitoria, Soto and Suárez, the natural lawyers Pufendorf

113 See especially A Pagden Lords of All the World. Ideologies of Empire in Spain, Britain and France c. 1500–1800 (Yale University Press New Haven 1995) ; L Benton Law and Colonial Cultures. Legal Regimes in World History 1450–1900 (CUP Cambridge 2002).

114 Eg A de Lapradelle Maîtres et doctrines du droit des gens (2nd edn Éditions internationales Paris 1950).

115 A Truyol y Serra Histoire du droit international public (Economica Paris 1995). 116 This is what I attempted to do in The Gentle Civilizer of Nations (n 70). 117 ‘Wir fi nden bei Vasquius zum ersten Mal den literarischen Apparat, mit dem die Naturrechtslehre

150 Jahre lang gearbeitet hat’ E Reibstein Die Anfänge des neueren Natur- und Völkerrechts (Haupt Bern 1949) at 22.

118 P Haggenmacher Grotius et la guerre juste (Presses universitaires de France Paris 1983).

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and Wolff, the philosophers Kant and Hegel, and others. The works vary widely in scope, but sometimes give express attention to the international law aspects of the relevant texts. 119 The contextual histories of early modern political thought by Rich-ard Tuck, Anthony Pagden, Ian Hunter, and Annabel Brett, for example, have signifi -cance for the history of international law as well. 120 The same applies to treatments of the Spanish classics not only by Pereña and Truyol y Serra but a number of other Spanish and German authors. 121 There is today a burgeoning literature directed to the history of international ‘legal’ thought. The oeuvre on Grotius is of course enor-mous—alongside the defi nitive work by Haggenmacher mention should be made of Martine Ittersum’s discussion of Grotius’ role in the justifi cation of Dutch commer-cial empire. 122 The work on Alberico Gentili is almost as large and increasing atten-tion to (legal) humanism will guarantee continuous interest in him. 123 Emmanuelle Jouannet and Peter Remec have examined aspects of Grotius and Vattel—Jouannet discussing Vattel within the naturalist tradition and, more recently, as the father of a ‘welfare-oriented’ construction of international law. 124 Marc Bélissa has produced a history of the law of nations among the French philosophes and revolutionaries in late-18th century and expanded that into a discussion of the Napoleonic period. 125 My Gentle Civilizer examined the legal thought of mainly continental jurists in the period 1870–1960 and the early part of that period is also covered in Stefano

119 Eg S Goyard-Fabre La construction de la paix—le travail de Sisyphe (Presses universitaires de France Paris 1994) and A Lejbowicz Philosophie du droit international. L’impossible capture de l’humanité (Presses universitaires de France Paris 1999).

120 R Tuck The Rights of Peace and War. Political Thought and the International Order from Grotius to Kant (OUP Oxford 1999) ; Lords of All the World (n 123); I Hunter Rival Enlightenments. Civil and Meta-physical Philosophy in Early Modern Germany (CUP Cambridge 2001) ; A Brett Liberty, Right and Nature. Individual Rights in Later Scholastic Thought (CUP Cambridge 1997) ; A Brett Changes of State . Nature and the Limits of the City in Early Modern Natural Law (Princeton University Press Princeton 2011).

121 A Truyol y Serra Actualité de la pensée juridique de Francisco de Vitoria (Brussels 1988). One of the best comprehensive studies on Vitoria, with a large discussion on international law is D Deckers Gerech-tigkeit und Recht. Eine historische Untersuchung der Gerechtigkeitslehre des Francisco de Vitoria (Univer-sitätsverlag Freiburg 1991) while the leading work on Suárez and international law is J Soder Francisco Suárez und das Völkerrecht: Grundgedanken zu Staat, Recht und internationale Beziehungen (Metzner Frankfurt 1973) ; see further K Seelmann Theologie und Jurisprudenz an der Schwelle zur Moderne. Die Geburt des neuzeitlichen Naturrechts in der iberischen Spätscholastik (Nomos Baden-Baden 1997).

122 M van Ittersum Profi t and Principle. Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies (Brill Leiden 2006) ; see also E Wilson Savage Republic. De Indis of Hugo Grotius, Republicanism and Dutch Hegemony within the Early modern World-System (Nijhoff Leiden 2008).

123 See especially D Panizza Alberico Gentili, Giurista ideologico nell’Inghleterra Elisabettiana (‘La Garangola’ Padova 1981) ; but also eg the essays in B Kingsbury and B Strauman (eds) The Roman Founda-tion of the Law of Nations. Alberico Genrtili and the Justice of Empire (OUP Oxford 2010).

124 E Jouannet Emer de Vattel et l’emergence doctrinale du droit international classique (Pedone Paris 1998) and eg PP Remec The Position of the Individual in International Law According to Grotius and Vattel (Martinus Nijhoff The Hague 1960) ; see now also E Jouannet Droit international providence. Une histoire de droit international (Bruylant Brussels 2011).

125 M Belissa Fraternité universelle et intérêt national (1713–95). Les cosmopolitiques du droit des gens (Kimé Paris 1998) and M Belissa Repenser l’ordre européen 1795–1802 (Kimé Paris 2006).

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Mannone’s Potenza e ragione that surveys the efforts by 19th century jurists to develop a ‘modern’ approach to peace and war. 126

Many of these works have focused on the contextual, often the ‘national’ back-ground of their protagonists in open contrast to the earlier fashion of highlighting their quality as ‘universal’ intellectuals, interesting as originators of present (often progressive) ideas. Where studies by William Butler on the Russian or Truyol y Serra on the Spanish tradition did focus on the context but stressed the ‘independ-ence’ of their protagonists from it, portraying them as representative of large humanitarian or pacifi st ideas, 127 newer histories seek to locate the jurists in their local environments as university professors, diplomats or counsel to governments, having institutional ‘projects’ of their own. Tony Carty has even tried to attain a psychoanalytical or phenomenological grasp of some of them. 128 General contex-tual readings of British lawyers in the 19th and 20th century have been made by Casper Sylvest and James Crawford, Mark Janis has written on the ‘American tradi-tion’ from the founders to the 20th century while Emmanuelle Jouannet’s long essay in the Annuaire français expounds the history of international law doctrine in 20th century France. 129 Lauri Mälksoo has written accounts of late-19th and early 20th century Baltic international lawyers and Russian international legal theories and similar histories have been written on at least Japanese, Turkish, and Greek international lawyers as well. 130 Many accounts have been written on international law in Germany during the inter-war era, with focus obviously on the Nazi period. 131

126 S Mannone Potenza e ragione. La scienzia del diritto internazionale nella crisi dell’equilibrio Europeo 1870–1914 (Giuffre Milan 1999).

127 W Butler Russia and the Law of Nations in Historical Perspective (Simmonds & Hill Wildly 2009). 128 A Carty ‘Interwar Theories of International Law: The psychoanalytical or phenomenological Per-

spectives of Hans Kelsen and Carl Schmitt’ (1995) 16 Cardozo Law Review 1235–92. 129 Eg C Sylvest ‘International Law in Nineteenth-Century Britain’ (2004) 75 The British Year Book of

International Law 9–70 ; C Sylvest ‘The foundations of Victorian International Law’ in D Bell (ed) Victo-rian Visions of Global Order: Empire and International Relations in Nineteenth-Century Political Thought (CUP Cambridge 2007) 47–66 ; J Crawford ‘Public International Law in Twentieth-century England’ in J Beatson and R Zimmermann (eds) Jurists Uprooted. German Speaking Émigré Lawyers in Twentieth-century Britain (OUP Oxford 2004) 681–708 ; M Janis The American Tradition in International Law. Great Expectations 1789–1914 (OUP Oxford 2004) ; E Jouannet ‘A Century of French International Law Scholar-ship’ (2009) 61 Maine Law Review 83–132.

130 L Mälksoo ‘The Science of International Law and the Concept of Politics. The Arguments and Lives of the International Law Professors at the University of Dorpat/Iur’ev/Tartu 1855–1985’ (2005) 76 British Yearbook of International Law 383–502 and L Mälksoo ‘The History of International. Legal Theory in Russia: a Civilizational Dialogue with Europe’ (2008) 19 European Journal of International Law 211–32. For the interwar Greek internationalist Stelios Seferiades’ use of international law as an instrument of ‘bourgeois modernization’, see T Skouteris , The Notion of Progress in International Law Discourse (TMC Asser Press The Hague 2010), 39–92 . See further A Becker Lorca , Mestizo International Law: A Global Intellectual History, 1850–1950 (CUP Cambridge, to be published in 2013) , and the works in note 102 above.

131 The classic here is DA Vagts ‘International Law in the Third Reich’ (1990) 84 American Journal of International Law 661–704.

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Studies on such central European scholars as Lassa Oppenheim and Hersch Lau-terpacht have been quite a few—but also James Leslie Brierly has been subjected to discussion. 132 The European Journal of International Law has organized symposia on such international lawyers as Dionisio Anzilotti, Max Huber, Hans Kelsen, Her-sch Lauterpacht, Alf Ross, Georges Scelle, and Walther Schücking. But by far the most impressive recent contribution to the history of international law as doc-trines and theories and the personal biographies of lawyers is the Max Planck series on the History of International Law that now has studies on Adam Glafey, Erich Kaufmann, Hans Kelsen, Friedrich Liszt, Georg Schwarzenberger, Karl Strupp, Helmut Strebel, Walter Schücking, Hans Wehberg, and a series of accounts of events and problems of particular interests in the German realm. 133 This refl ects the very active interest that the German legal community has had to its history.

Yet concentrating on individual writers, national traditions or Ideengeschichte leaves untreated the history of ‘law’ as the development of legal concepts, principles or institutions—or perhaps suggests that those are the creation of particularly bril-liant individuals who manipulate the law in their preferred ways. Its reductionism is in a sense diametrically opposed to that of ‘epochal’ history that leaves no space for any but collective actors. Surely there is (and should be) room for a Begriffsgeschichte or a conceptual history that examines the changes in meaning of legal concepts such as ‘sovereignty’, ‘immunity’, ‘arbitration’, and ‘just war’ or institutions such as the United Nations, the Red Cross, or Amnesty International. There are many existing histories on international legal institutions, including on the law of the sea by Fulton, Anand, and others, on the laws of war by Neff, on Great Powers by Simpson, and on Peace Treaties by Lesaffer, just to mention some recent English-language works. 134 But these works rarely follow a specifi c method—not to say anything about adopting a formally ‘conceptual history’ approach in the vein of Reinhardt Koselleck, for exam-ple, that would highlight the polemical character of the vocabularies, the way the

132 On Oppenheim, see eg B Kingsbury ‘Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s ‘Positive International Law’ (2002) 13 European Journal of International Law 401–35 ; M Schmoeckel ‘The Internationalist as a Scientist: Lassa Oppenheim and his “International Law” ’ (2000) 11 European Journal of International Law 699–712. See also the contribution by M Schmoeckel ‘Lassa Oppenheim (1858−1919)’ in this volume. On Brierly, see C Landauer , ‘J.L. Brierly and the Modernization of International Law’ (1992–93) 25 Vanderbilt Journal of Transnational Law 881–917 ; on Lauterpacht, see M Koskenniemi ‘H Lauterpacht 1897–1960’ in J Beatson and R Zimmermann (eds) Jurists Uprooted: German-Speaking Emigré Lawyers in Twentieth-Century Britain (OUP Oxford 2004) 601–62 , and the contribution by IGM Scobbie ‘Sir Hersch Lauterpacht (1897–1960)’ in this volume.

133 B Fassbender , M Vec and WG Vitzthum (eds) Studien zur Geschichte des Völkerrechts (Nomos Baden-Baden 2001ff). For list of publications, see < http://www.nomos-shop.de/reihenpopup.aspx?reihe=254 > (26 March 2012).

134 T Fulton The Sovereignty of the Sea (Blackwood London 1911) ; RP Anand The Origin and Develop-ment of the Law of the Sea (Kluwer Boston 1982) ; SC Neff War and the Law of Nations: A general History (CUP Cambridge 2008) ; G Simpson Great Powers and Outlaw States (CUP Cambridge 2005) ; R Lesaffer (ed) Peace Treaties and International Law in European History (CUP Cambridge 2004).

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135 See R Koselleck , ‘The Historical-Political Semantics of Asymmetrical Counterconcepts’, in Futures past. On the Semantics of Historical Time (Columbia University Press, New York, 2004), 155–191.

136 R Redslob Histoire des grands principes du droit des gens depuis l’Antiquité jusqu’a la veille de la grande guerre (Rousseau Paris 1923).

137 ibid 559. 138 Passions et ambivalences (n 117) . 139 For each of the three suggestions, see P Lauren The Evolution of International Human Rights. Visions

Seen (3rd edn University of Pennsylvania Press Philadelphia 2008) ; L Hunt Inventing Human Rights (Nor-ton New York 2004) ; S Moyn The Last Utopia (Harvard University Press Cambridge MA 2009).

legal concepts and categories receive meaning and applicability in reaction to politi-cal developments. 135

Again, a word of caution is called for here. This type of history cannot be just a history of legal concepts or institutions that travel, as it were, unchanged through time, stable objects for States and their rulers to react to in idiosyncratic ways. This is the manner in which the Alsatian public lawyer Robert Redslob conceived his 1923 history of the four key principles of international law: binding force of treaties, freedom of States, equality of States, and international solidarity. The fate of each principle is surveyed from antiq-uity through the Middle Ages to the Peace of Westphalia, from the dynastic wars to the French Revolution (1789), and from the Vienna settlement up to the First World War. 136 Even as the development of these principles, Redslob writes, has been neither even nor continuous, in the grand scheme of history, they have still progressed, and, after the German-induced catastrophe that the war was, have been set on a fi rm footing within the League of Nations: ‘une oeuvre architectural qui relie et consolide les quatre grands principes du droit des gens’. 137 Such an approach takes the present concept or institution as a given and tends to reduce all prior history into the role of its ‘primitive’ precursor. This would be anachronistic—it would fail to account for the meaning of legal concepts and institutions for the contemporaries for whom each moment is, of course, as modern and as full of meaning as our concepts are for us.

A conceptual history would rather take the legal vocabularies and institutions as open-ended platforms on which contrasting meanings are projected at different periods, each complete in themselves, each devised so as to react to some problem in the surrounding world. Its interest lies in meaning formation (‘how does a particular concept receive this meaning?’) rather than the contents of any stable meaning per se. For this kind of history, legal institutions are constructed constantly anew in polemical confrontations where opposing positions clash against each other: law would be constructed as an aspect of political struggle. A good example of this would be Nathaniel Berman’s explorations of the inter-war international law that refer back to the world-views, prejudices, and insti-tutional ambitions of the protagonists whose use of international law cannot be under-stood without linking it to their often ambivalent political agendas. 138 Nor is history-writing itself free of polemical intentions or effects. We can see this in the on-going debates on the history of human rights. Do rights remain unchanged and historical only to the extent they are present to consciousness? Or are they an effect of 18th-century literary imagination or 20th-century institutional politics? 139 Answers to such questions do not

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970 methodology and theory

140 Provincializing Europe (n 10) 28.

only lay out contrasting agendas for historical work but also positions about the political meaning and direction(s) of our present rights vocabulary.

6. Conclusion

The histories of ius gentium , natural law, and the law of nations surveyed above, whether from the standpoint of the 14th or the 21st centuries, are situated within a temporal trajectory whose markers come from Europe; they adopt a European hori-zon of ‘progress’ and ‘modernity’. The rise and globalization of statehood, for exam-ple, like the distinctions between ‘political’ and ‘economic’ as well as ‘private’ and ‘public’ that underlie this history point to specifi c European experiences and concep-tualizations. Even if new approaches to history writing in international law have emerged in which colonialism has become a central theme, it still remains the case that ‘Europe rules as the silent referent of historical knowledge’. 140 It is hard to see what could be done with this—apart from encouragement of the study of an increas-ingly wide fi eld of legal vocabularies, and taking a perspective that would move between the political and the biographical, contextual and the conceptual. What we study as history of international law depends on what we think ‘international law’ is in the fi rst place; it is only once there is no longer any single hegemonic answer to the latter question, that the histories of international law, too, can be expected to depart from their well-worn paths, and open our eyes to experiences of rule that have hith-

erto remained in darkness.

Recommended Reading

Anghie, Antony Imperialism, Sovereignty and the Making of International Law (CUP Cam-bridge 2005).

Berman, Nathaniel Passions et ambivalences: le nationalisme, le colonialisme et le droit interna-tional (Pedone Paris 2008) (in English) Passion and Ambivalence. Nationalism, Colonialism and International Law (Brill, Leiden 2011).

Craven, Matthew , Malgosia Fitzmaurice and Maria Vogiatzi (eds) Time, History and Interna-tional Law (Nijhoff Leiden 2007).

Fisch, Jörg Die europäische Expansion und das Völkerrecht (Steiner Stuttgart 1984). Gaurier, Domienique Histoire de droit international. Auteurs, doctrines et développement de

l’Antiquité à l’aube de la période contemporaine (Presses universitaires de Rennes Rennes 2005).

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Gozzi, Gustavo Diritti e civiltà. Storia e fi losofi a del diritto internazio nale (il Mulino Bologna 2010).

Grewe, Wilhelm G The Epochs of International Law (M Byers trans) (de Gruyter Berlin 2000).

Haggenmacher, Peter Grotius et la guerre juste (Presses universitaires de France Paris 1983). Jouannet, Emmanuelle Emer de Vattel et l’emergence doctrinale du droit international classique

(Pedone Paris 1998). Koskenniemi, Martti The Gentle Civilizer of Nations. The Rise and Fall of International Law

1870–1960 (CUP Cambridge 2004). Nussbaum, Arthur A Concise History of the Law of Nations (2nd edn Macmillan New York

1954). Paz, Reut Yael , A Gateway between a Distant God and a Cruel World. The Contribution of Jewish

German Scholars to International Law (Brill Leiden 2012). Preiser, Wolfgang Macht und Norm in der Völkerrechtsgeschichte (Nomos Baden-Baden

1985). Redslob, Robert Histoire des grands principes du droit des gens depuis l’Antiquité jusqu’a la veille

de la grande guerre (Rousseau Paris 1923).

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