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1 - Between History, Politics and Law

History of Political Thought and History of International Law

from Part I - Methods, Approaches and Encounters

Published online by Cambridge University Press:  28 September 2021

Annabel Brett
University of Cambridge
Megan Donaldson
University College London
Martti Koskenniemi
University of Helsinki


History of this, history of that: it’s easy to assume that ‘history’ is the same thing in each case, only with a different object. As every historian knows, however, that is not so. History is not a universal lens that can be trained indifferently on any random thing suspended in that turbid fluid called ‘the past’. Rather, there is a mutually constitutive relationship between the different kinds of things historians study and the different kinds of history they write. The framing tropes of political history differ from those of cultural history, for example, and spin their objects distinctively in each case. If historians take such different approaches, however, what makes them all historians nonetheless? Is there a point at which they are not, in fact, doing history at all, but something else – law, for instance? And what is at stake in asserting such a point? The premise of this volume is that this is a conversation worth having following the ‘international turn’ in history of political thought and the ‘historical turn’ in international law. This gives practitioners of both apparently the same objects – the works of Hugo Grotius, for example, or at least the particular work of his called, in English translation, The Law of War and Peace (or, The Rights of War and Peace – whose title is it anyway?). If history of political thought and history of international law are different kinds of history, however, they will spin these texts each in their own way, so that through the eyes of one they are works of political thought, through the eyes of the other works of law. But what is it for a work to be political thought rather than law?

History, Politics, Law
Thinking through the International
, pp. 19 - 48
Publisher: Cambridge University Press
Print publication year: 2021

1.1 Introduction

History of this, history of that: it’s easy to assume that ‘history’ is the same thing in each case, only with a different object. As every historian knows, however, that is not so. History is not a universal lens that can be trained indifferently on any random thing suspended in that turbid fluid called ‘the past’. Rather, there is a mutually constitutive relationship between the different kinds of things historians study and the different kinds of history they write. The framing tropes of political history differ from those of cultural history, for example, and spin their objects distinctively in each case. If historians take such different approaches, however, what makes them all historians nonetheless? Is there a point at which they are not, in fact, doing history at all, but something else – law , for instance? And what is at stake in asserting such a point? The premise of this volume is that this is a conversation worth having following the ‘international turn’ in history of political thought and the ‘historical turn’ in international law. This gives practitioners of both apparently the same objects – the works of Hugo Grotius, for example, or at least the particular work of his called, in English translation, The Law of War and Peace (or, The Rights of War and Peace – whose title is it anyway?). If history of political thought and history of international law are different kinds of history, however, they will spin these texts each in their own way, so that through the eyes of one they are works of political thought, through the eyes of the other works of law. But what is it for a work to be political thought rather than law?

Before we begin to explore that distinction, it is worth considering what these two approaches might have in common in the way in which they engage the present. In some sense, of course, all history engages the present. The past does not exist independently and on its own terms: what is past is so only in relation to the present, and therefore inextricably bound up with it. But the past is also something distinct from the present, something that is not present. History is the Janus-faced art that creates the past in the sense of a relationship with the present while simultaneously representing the past as something distinct from the present. The distinctive voice of the historian, the histor, depends on the ability to stabilise that distance by referring ‘out’ from the story to the traces of the past – the letter in the archive, the stones in the desert, ‘the sword which was a sword once, in another grasp’ – and to other stories read not as stories but as traces.Footnote 1 The poetry reminds us how even the most material traces are already storied in some way in the Western historical imagination. Even so, however, the past is not such traces, nor is history the facts that are constructed from them through shared conventions of reference and inference. History is the story we tell ourselves about what really happened outside the story, and those two things can never be entirely separated nor ever entirely fused unless we stop writing history altogether and content ourselves with archaeology and novels. (Sacred scripture, which fuses the inside and the outside, the story as story and the story as trace, is then a very complex and historically challenging third case.Footnote 2) It is in the writing that this double face of history comes into relief, a graphic medium that draws lines around some things and effaces others, which just is to write the line between past and present. As Paul Ricœur put it, ‘if one says that emplotment, say, concerns only the writing, one forgets that history is writing’.Footnote 3

The question, therefore, is not about past and present in history generally, but whether history of political thought and history of international law have a kind of presentism built in that other kinds of history do not have – perhaps even to the extent that they elide the space for the distinctive duality of history and are therefore, in fact, not history at all. The argument would be that the peculiar temporality both of thought and of law draws the history of each inexorably into the present, collapsing the history of political thought into political thought and the history of international law into international law. This argument has a long history within the history of political thought, the very name of which seems to tug it both ways, towards an intellectual history that is part of history and a history of philosophy that is part of philosophy.Footnote 4 It has generated a long-standing methodological debate that waxes and wanes but never entirely dies – partly because methodological statements, however sophisticated, can never be more than crude reflections of the complex thinking involved in even the simplest questions of actual practice (how do I paraphrase this passage of Grotius, for example).Footnote 5 There are those who want to pull the history of political thought firmly in one direction or the other. But many of its practitioners resist that attempt. Both in their methodological statements and, far more importantly, in their substantive histories, they have in different ways negotiated the space of, and for, history in relation to philosophy. ‘Far more importantly’, not only because of the inevitable crudity of methodological statements, but more fundamentally because, as in all history, the past–present relationship is not propositional. It cannot be stated; it can only be written. What is distinctive to the history of political thought as a form of history is that the way in which it writes the borderline between past and present, as all history must, involves a second borderline, between history and philosophy. The Janus face of history of political thought, specifically, is that the representation of a past way of thinking is at the same time an act of political thinking in the present.

History in general is currently undergoing a new wave of self-examination as it engages with the question of the global, simultaneously with a new critical awareness of the relationship between timing and spacing concepts both at a macro and at a micro level (the ‘spatial turn’). The same is true of intellectual history and of history of political thought, as it grapples with the timing and spacing of the global in relation to the temporality of thought that has always been its concern. This endeavour is throwing up some of the old conundrums and some new ones, in which one might expect to find a good deal of common ground with the more recent historical turn within international law. The initial dialogue, however, has seen a series of sharp exchanges in which the relationship between history of political thought and history of international law has been pushed into a question of the relationship between history and law per se, marked by a polemical drive to establish an antagonism between the two. Somewhat to the surprise of historians of political thought, who are used to being accused by their colleagues in history of not really doing history at all, ‘history of political thought’ has become a stand-in for ‘history’ itself. Or at least, a stand-in for a pre-global form of history inadequate to the new dimensions of time and space, unlike certain other forms of intellectual history which have the capacity to rise to the challenge and on which international law can therefore happily draw. And it has been used in exactly the same way from the other side, to denounce those new dimensions as merely the latest inflated iteration in a long and tired tradition of metaphysical pseudo-history. As a result, the question of the relationship between political thought and international law as objects of history has been pushed into the background or even foreclosed altogether.

In what follows I want to consider the temporality of history of political thought in more depth by exploring two different directions in which it can be taken. With both, I consider the consequences of those different directions for thinking about law, aiming thereby to reopen the dialogue between political thought and international law from a different angle. But one final point about history in general needs to be made before I start. Historians, when they feel under pressure, have an unfortunate tendency to define themselves in terms only of one face of history, the study of the past as distinct from the present. They speak as if the historian’s distinctive voice were constituted purely by stabilising the reference ‘out’ from the story, and they underline this emphasis by talking in terms of documents as sources, facts as independent historical truths and history as the reconstruction of what really happened on the basis of them. It is true that no historian can practise their craft without an alignment with this distinctive way of seeing (‘objectivity’) and the scholarly ethos it involves. At the same time, however, historians know full well that history is not sources or facts, but a story in which the reconstruction of what really happened cannot be separated from the construction of their own narrative of what really happened. It is both together that make an account historical as opposed to either factual, fictional or scriptural. To focus purely on the former, either in defending themselves or attacking others, both devalues the stories they tell and, importantly for the present contribution, flattens the distinction between different kinds of history. But this is not a point about history of political thought in particular, which, as suggested earlier, has an interface with philosophy that is not shared with all types of history. As we shall see, that interface is further complicated by the element of ‘political’ in its object, which brings another party to the table: politics.

1.2 History of Political Thought and Politics

History of political thought tends to be identified, somewhat to its practitioners’ unease, with something now generally known as ‘the Cambridge School’. The Cambridge School is in turn identified with the three figures understood to have initiated this scholarly movement between the late 1950s and the early 1970s, John Dunn, John Pocock and Quentin Skinner. Reducing still further, the manifesto of this ‘school’ is widely taken to be the latter’s 1969 article, ‘Meaning and Understanding in the History of Ideas’.Footnote 6 In it, and in a series of subsequent articles, Skinner put forward a method for studying the history of ideas that turned on reading texts in historical context, defined as the context of their production. Drawing on the linguistic pragmatics of Wittgenstein, Austin and Searle, Skinner argued that texts should be seen not as expressions of timeless ideas, but as speech acts. To understand the meaning of a text as a speech act is to understand its ‘illocutionary force’, its peculiar point or intentionality, the character of which can only be understood against the background of contemporary linguistic conventions. The meaning of any specific utterance is inescapably public in this way. Accordingly, the historian of political thought will need to begin by reconstructing the historical discursive context. This, in turn, will be related to the social, political, institutional and cultural contexts of that discourse, according to Wittgenstein’s concept of a ‘language game’ as not merely a shared system of signs but also ‘the actions into which [that system] is woven’.Footnote 7 From there the historian can proceed to thinking about the meaning of the individual text (or texts) as a move within that historical language game.

This proposition, now dubbed ‘contextualism’, has sometimes been taken to constitute a self-sufficient methodology in itself. In fact, however, it leaves open as many questions as it answers, questions that Skinner and other historians have worked on intensively in the intervening years.Footnote 8 For present purposes, the question is over the sense of politics involved and how that inflects the issue of temporality and therefore the writing of history. What, then, makes a given language game a political language game as opposed to any other kind? Partly because it involves a language – a shared system of signs – for talking about politics as opposed to anything else (it contains words like ‘king’, rather than ‘slab’ or ‘beam’). But it is also because that shared system of signs is woven into a shared activity of politics, such that to talk about politics is also political in the sense of being part of politics. To refer to someone as ‘King’, for example, even if this were entirely casual and completely uncontroversial at a given time and place, is a political act in the sense that it not only refers to but implicitly recognises that person’s political position. This double sense of ‘political’ is something on which I think all historians of political thought would agree. It is what prevents the collapse of history of political thought into any other branch of intellectual history. Where they might disagree, though, is over how to construe it, and that involves their understanding of politics itself.

Developing his methodological approach in the early 1970s, Skinner made speech act and political act coincide within a Weberian understanding of legitimation.Footnote 9 He broadly accepted Weber’s view of the state as holding a monopoly of legitimate violence within a given territorial area. Skinner was not particularly interested in the violence, however. Rather, it was the demand for and the production of legitimacy which on his understanding was the defining characteristic of politics as a form of shared activity. Unlike the use of force, legitimation can never be a unilateral action. Rather, it is co-produced between a political speaker and a political public within vocabularies that are widely recognised and accepted as having normative force within their shared community. The agency of the former is both enabled and constrained by the normative language that both parties to the linguistic negotiation inhabit, making the speaker an actor in language rather than an instrumental user of it. Legitimation thus presupposes some sort of public domain, however restricted it may be, with at least some degree of political agency on the part of the relevant public. Where there is no room at all for legitimation, there is no politics and there is no political power, though there might be power of other kinds, for example, that of a master over a chattel slave, or military power as in an occupation.

This picture furnishes a view of political languages as not simply those that contain the vocabulary necessary to refer to the agents, bodies and institutions that characterise a political system (‘king’, ‘parliament’, ‘the Home Office’ rather than ‘slab’ or ‘beam’). Rather, a political language is a legitimating language, one in which the normative dimension is explicitly articulated in value-laden terms having persuasive force in respect of a given public. Skinner called such a language an ‘ideology’ and its use ‘ideological’, but not in the usual pejorative sense of indoctrination, or as somehow involving false consciousness. Ideologies understood in this sense present a cut-and-dried political world view, fashioned by political–intellectual masters to be swallowed and reproduced whole, thus suppressing the political agency of their consumers. Legitimating languages in Skinner’s sense, however, and in the work of J.G.A. Pocock and others, are looser associative clusters of vocabulary that rely on the agency of a political public to fill in the gaps.Footnote 10 As such they typically appeal beyond the strictly political to moral, legal, aesthetic, religious, logical and even natural scientific principles, and to other kinds of social, cultural and intellectual authority. This continuity between political and other forms of discourse has the effect of widening the relevant public beyond national boundaries, since these forms are very rarely contained within one place even though they may have a strong local inflection.Footnote 11 In turn, the looser spatial contours of such exchange alter and extend the temporal contours.

Ideology in Skinner’s original sense, then, is not a corruption but constitutive of politics on his understanding, and any political speaker articulating a position in normative terms will use elements of existing ideology to make their case. That use could be a straightforward rearticulation (‘the king is the father of the people’); it could be a kind of ironic subversion (a satirical print, captioned ‘The Father of the People’, depicting the king surrounded by dozens of illegitimate children); or it could be a more thoroughgoing innovation within language which, if successful, could change the terms of political discourse as a whole (linguistically repositioning the association between ‘king’ and ‘father’ as a marker of despotism, for example). In all these cases, the ideological use of language is ‘political’ in a stronger sense than the everyday and unselfconscious use of common political terms of reference, wherein the ideological inflection is so weak as to reduce its political valence nearly, though not quite, to simple description. Not quite, for on this analysis both kinds of usage are involved in the constitutive role of political language in politics as a form of life. This connects the different levels and registers of political discourse, and it also connects that discourse to non-discursive features such as the layout of a parliamentary debating chamber or a princely palace. As we have already seen, all these elements of politics are further connected with broader discursive forms and institutions of social, cultural and intellectual life.

What does this approach mean for actually writing the history of political thought? The answer is that, while its distinctive way of joining up the publicity of language with the politics of legitimation precludes certain narrative choices, it leaves open a wide range of others. As in so many cases, it is flexibility and workability that have been key to its professional diffusion. Its twin poles, of political languages and those who use them, allow historians to weight them and to construct the interplay between them differently, depending on the distinctive features of the area they are looking at. They offer a choice of spatial parameters, as we have seen, and also a choice of temporal parameters. Certainly, you are not going to get the point of the satirical print if you don’t know that the king as the father of the people is a standard motif of royalist ideology at a certain time and place. In that sense, the spatial and temporal parameters that the historian establishes for the speech act are indeed governed by the time and place of its production, or the ‘context’. But I say ‘governed’, rather than ‘given’, advisedly: the spatial and temporal diffusion of political language means that context can never be closed, or unique, and the endless circulation of copy complicates and sometimes defies the search for an originating moment.Footnote 12 Texts can also shift context, for example if Hobbes’s Leviathan were to be republished two hundred years after its original publication on the other side of the world. Such movement tends to take place within longer-term patterns of social and cultural practice and circulation – texts don’t (most of the time) just wash up on the beach like a message in a bottle – and tracking contextual shift within these kinds of broader patterning is one of the things that history of political thought classically does.

Nevertheless, it remains true that the republished work constitutes a new speech act in a new context. Texts have no continuous identity as acts, even though Hobbes’s Leviathan may have a more or less continuous identity as a text. More or less, because it is not, in fact, the same text in Chinese translation, say, or even in another European language; with a new editorial foreword, with or without footnotes or an index. It is partly precisely the understanding of the new edition as a new act that helps us to see that.Footnote 13 For any specific act, however, if the contextual parameters are drawn too broadly, they will have no explanatory traction: not on the words, not on the text, but on the point of the words, that is, on their nature as an act. It is this feature of ‘meaning in context’ that led to controversy with political philosophers from the outset and continues to raise objections, as it seems to pin meaning down in time and space (‘provincialism’, ‘containment’).Footnote 14 In terms of the potential exchange between history of political thought and history of international law in which the present volume is interested, it has been seen as an insuperable barrier. International law, it is argued, should avoid ‘contextualism’ at all costs, because, whatever the broader continuities to which it might appeal, the discontinuity or punctuality of act-in-context denies the movement of meaning with which international law is necessarily concerned.Footnote 15

Two points might be made in response. The first is to reiterate that historians of political thought in this vein are not looking for any kind of meaning, but for political meaning; not for sense of the words, but for the politics of their utterance. It is for this reason that they are interested in texts as acts in a very specific sense. If a historian, including an intellectual historian or a historian of law, is not interested in text-as-act in this sense, then the spatiotemporal parameters involved in the contextual approach are not a limitation in some way; they are simply irrelevant. The question, then, is whether history of international law has anything to gain from seeing texts as acts in this way. I am not qualified to answer that question, only to open an invitation to dialogue, as I shall do in conclusion. For the moment I make only the general point that, while the framing tropes and rhetoric associated with the global turn in all disciplines tend to paint any kind of ‘limit’ (conceptual or otherwise) pejoratively, contextual parameters do allow a historian to capture a peculiar feature of certain discursive situations that would otherwise be elusive – the politics of republishing Leviathan in Chinese two centuries later, say. It might certainly be possible to say that international law has no interest in this kind of politics or this kind of meaning at all. But that appears to involve a thesis, not only about contextualism, or about the relationship between history and law, but about the relationship between law and politics. It is all three terms, then, history, law and politics that need to be put in question simultaneously.

Now it might be objected here that what I have just said is disingenuous. For, the objection runs, history of political thought in this vein is not looking only for political meaning; ‘contextualism’ claims that if you don’t look for that kind of meaning, ‘meaning in context’, you are not doing history at all. It is certainly true that Skinner’s original thesis in ‘Meaning and Understanding’ was intended to cover not only history of political thought but the entirety of ‘history of ideas’ or intellectual history. One reply to this objection, then, is simply to say that whatever Skinner’s ambitions in that essay, its methodology in practice works much better for history of political thought than for other kinds of intellectual history, precisely because of the politics involved.Footnote 16 And, when Skinner came to develop it into a working methodology for history of political thought in the early 1970s, he made those politics explicit, as we have seen. It is perhaps for this reason that contextual historians of political thought are less invested in ‘Meaning and Understanding’, specifically, than are their critics. Another reply might be to point out that this objection, insofar as it is an objection relative to history of international law, implicitly assumes that such history is a kind of intellectual history; but that is precisely one of the things in question.Footnote 17 Finally, and this leads to the second point of my response, it may be true that some intellectual historians do indeed see the contextual principle as per se definitive of a historical approach to meaning. Nevertheless, the collapse of ‘historical’ into ‘contextual’ is not a necessary consequence of this way of thinking and not all historians of political thought either must, or do, endorse it.

Here it is necessary to be quite precise about the work that contextual parameters are doing in this kind of history. They provide, as I have suggested, explanatory traction on a very specific phenomenon, and it is this traction that allows ‘context’ to be weaponised against other kinds of meaning and other kinds of history. Contextual explanation, or making plain, however, is not the same thing as contextual interpretation, or making sense. Context might make plain the character of an act, but it is not enough to make sense of it, historically speaking. To do so requires a further element of interpretation, a creative act of making sense which necessarily breaks the bounds of time and place as it involves a different kind of meaning: meaning as in historical sense, or significance within a story. What the contextual historian of political thought is aiming for is to bridge over between these two kinds of meaning. Crucially, however, this second kind of meaning is not simply layered on top of the first like icing on a cake. The two are mutually involved, and it is in the different ways of handling that relationship that the differing interpretative possibilities of contextual history of political thought lie. I explore those possibilities more fully in the next two sections. For the moment, the important point is that in whatever way a contextual historian constructs the relationship between the two kinds of meaning, the materials for that construction do not come from the contextual principle alone.

To understand why, we need to see that the speech act, so central to this methodology and to the definition of ‘context’, in fact lies in an ambivalent position at the intersection of the twin historiographical poles of speaker and language. It points in both directions simultaneously without being fully joined up either way. Making sense of the act involves closing the gap with one or other of the poles in ways that are not dictated by the approach but must be independently supplied by the historian. Consider on the one hand the gap between the speech act and the speaker, or the difference between writing ‘the politics of republishing Leviathan’, as I just did, and ‘the politics of the republished Leviathan’.Footnote 18 You might be able to establish that a certain phrase had a certain meaning x, in the sense of illocutionary force or speech act, in a certain discursive context (by looking at contemporary dictionaries, for example, coupled with other contemporary accounts). You might even be able to say it was a fact. But you could never say it was a fact that, in saying that phrase in such a context, a certain person meant x. Meaning in this sense is never a simple precipitate of discursive context but always an interpretative move on the part of the historian. It involves contextual meaning, insofar as that can be established by reconstructing the discursive context, but also a range of other features of the historical situation that the historian has picked out as salient. And that kind of salience is governed not by the context, but by the story she seeks to tell, which in turn is governed by her broader historical and political commitments. The same is true, mutatis mutandis, with closing the gap between the speech act and the other pole of the method, that of language. To fold a contingent speech act into a larger-scale history of political discourse requires structuring motifs (such as evolution, revolution, teleology, coincidence) that again import the historian’s broader historical and political commitments. In either case, historical meaning escapes the tight parameters of contextual explanation, as the shape of the story pulls the speech act into its own shape.

In what follows I try to put these two main points, about political meaning and about historical meaning, together, by sketching two interpretative directions in which contextual history of political thought can be taken. It is not my intention here to construct another polarity, to try to force historians into one corner or another. My own commitments will inevitably emerge (that is of the essence of what I am saying), but there is a spectrum of available interpretative choices, and most historians of political thought would position themselves coherently somewhere between the extremes. Nevertheless, this rough and necessarily oversimplifying contrast may serve to bring out the further commitments involved in writing the history of political thought that are not contained in the bare principle of ‘meaning in context’. These are to do with the nature of politics, in the first instance, but behind them lie deeper commitments on the nature of power, of agency, indeed of reality itself. Accordingly, they bring back into play the relationship between history and philosophy with which we originally began, and which has since been rather lost in the mêlée. With each of them, I consider the place of law within their differing co-constructions of history and politics , and therefore their implications for the relationship – and for renewed dialogue – between history of political thought and history of international law.

1.3 History of Political Thought and the Politics of Power

One way into the difference I have in mind is by thinking about how different historians of political thought cast the relationship between the discursive and the non-discursive. In the historiographical terms that I introduced at the start of this chapter, the immediate ‘outside’ of history of political thought – what it immediately refers to – is historical language or discourse. That, however, involves a further ‘outside’, that of the non-discursive worlds in which these languages, and the speech acts within them, have their home. (They don’t just float around in undifferentiated space and time.) We have to do, therefore, with a dual construction of an ‘outside’ – the outside of discourse in the past and the outside of the historian’s story in the present. This is the co-construction of the historical and the political with which we are concerned.

To go back, then, to the picture of political languages we were sketching in the previous section, we saw that in the background to the discursive world lie a plethora of non-discursive phenomena. There are institutional sites of political discourse such as palaces and parliaments, and beyond them further sites of socioculturally authoritative discourse such as universities or other institutions of scholarship, places of worship and courts of law. There is also an endless variety of other social and cultural forms in which people produce and consume political meaning, newspapers, letters, cafés, public squares, etc. The explanatory and interpretative salience which these non-discursive aspects are given in particular cases differs from historian to historian along broadly the same lines as in all intellectual history. But history of political thought differs from other kinds of intellectual history, as we have seen, because it must take a decision on what counts as political. One way of taking that decision, associated with the position known as ‘political realism’, is to hold that politics is essentially about power. In other words, the original dual sense of ‘political’, on which all historians of political thought might agree, should be construed specifically as speech that is both about power and involved in its operation. It is power that constitutes the crucial reality of politics, the ‘outside’ of political discourse. Political thought that is not about power is simply not political, nor is its history properly the history of political thought.

The bare assertion that politics is about power begs the question, of course, of what exactly is power, and how does it operate. It is the element of extra-discursive, therefore, that specifies the understanding of power we are talking about here: violence, or the use of force. This does not mean that political power, on this construction, reduces to violence or force. It is possible to distinguish power and violence, conceptually speaking, in any context. Political power, especially, must establish its authority, or the power to command voluntary compliance, and that involves legitimacy and legitimation (in the Weberian sense). Nevertheless, such authority must be enforceable, or it is not authority in the relevant, political sense. In the final analysis, then, it is the threat of force or violence (and the credible command of such force) that is the central characteristic of political power as opposed to any other kind of power.Footnote 19 Behind the definitional primacy of the threat of force to politics lies an avowedly Hobbesian picture of the realities of human psychology, human action and human conflict, and likewise a broadly Hobbesian view of the state as a solution to that conflict by constituting a ‘common power, to keep us all in awe’, in Hobbes’s phrase. It follows that the primary arena of politics is the state, on a distinctively modern understanding of it. International politics is a conceptually secondary form, however important, historically speaking, that arena may become, and however much it may impact back upon domestic politics such that the two become effectively inseparable.

As a solution to a real problem, the state is both a timebound and a local, or in other words a historical, phenomenon. In this way, political realism co-opts history to politics, and here is where it appeals to contextual history of political thought as an approach to political discourse. If we compare the realist vision with Skinner’s original Weberian impulse as described above, we can see that there are clear continuities. But there are differences, too. Realism represents a more agent-centred model of politics. Politics is the field of action, and power is pulled into agency, be it of individuals or political institutions or other bodies such as corporations.Footnote 20 Skinner was interested in political action, of course; his appeal to the concept of a speech act makes no sense otherwise. But he was also interested in legitimating language as a phenomenon that constrains as much as enables agency within a shared normative horizon. Realism can, somewhat uneasily, accommodate a broader, social sense of legitimation through an appeal to a collective psychology of belief. But it also wants to keep a narrower understanding of ideology which is closer to the standard twentieth-century use of the term. Ideology is a kind of political illusion, ‘a set of beliefs, attitudes, preferences that are distorted as a result of the operation of specific relations of power’, distorted (characteristically) in the sense of presenting such beliefs as connected with universal interests when in fact they serve particular interests. Political philosophy can then either critically reveal that distortion, by exposing its relation to power (‘critical realism’), or itself be ideological in the same sense.Footnote 21

Political realism stands at one extreme of the interpretative possibilities offered by the basic conceptual architecture of speech acts, and it has a series of consequences for historiography. Not all historians of political thought sympathetic to this understanding of politics would endorse all the premises of the philosophical position. In particular, most would retain a much stronger role for a political public and for the reception of political discourse. Nevertheless, an appeal to politics in a broadly realist vein supplies one possible mode of writing the history of political thought, one that is likewise strongly agent-centred in its approach. It has a very firm historical voice – a strong ‘outside’ in the concrete and documented phenomena of political speech and political action, to which it can stably refer – giving it continuity with the classic techniques of historical writing in all fields of history. It offers a clear way of joining up the speech act with the actor in the pursuit of power, but is equally sensitive to the multiple linguistic and political failures of such attempts. It can, moreover, go beyond the specific speech act to analyse an entire political language, because its ‘outside’ in political action as an exercise of power allows it to conceive both in essentially the same way. Such an exercise of power could be very tightly defined in spatiotemporal terms – a specific political act like suppressing a riot or devaluing the coinage – but it could also be defined much more loosely, such as British empire in Africa, say. Likewise, the agent can be scaled up from an individual or a group of individuals to a state or a group of states (‘the colonial powers’, for example).

Like all history of political thought, this interpretative approach has no room for the universal (in the sense of extra-historical and extra-political) truth of the expressions it studies. But political realism does have a distinctive attitude of ‘seeing through’ such truth claims, especially moral and religious universals. While such ideals can be pulled into real politics through an appeal to psychological motivation, taken at ‘face value’ they are yet further illusions that cloud a correct perception of reality.Footnote 22 Turning from philosophy to history, this in turn supplies an effective historiographical trope, that of exposure – a bringing to light, an unmasking, of the ideological slant of works that may or may not, on the face of it, look ‘political’ in content. The corollary of constructing the ‘outside’ of language in this way is to position the historian, in the present, precisely as an outsider, a critical observer or reporter. The literary form of the exposé is itself a political form, linking the exposé of past and present. The historian does not herself engage in moral condemnation, condemning the colonial powers, say, according to some universal standard of justice – or, if she does, she betrays the principles of the approach. Rather, the historian’s exposé must stand for itself as a political speech act in the present. In this way, a realist history of political thought must be irreducibly political, not just in its object, but as history. The politics of both are mutually implicated.

What are the consequences of this specific co-construction of history and politics for law? A broadly realist construction of politics sees law as an act of sovereign power and the primary instrument of political government. The central case of law is therefore the domestic law of the sovereign state, just as it is the focal arena of politics. Judicial interpretation of statute is also law, if that capacity is sanctioned by the constitution as an order of sovereignty; likewise, international treaties or other forms of international law. Law in its formal aspect as an act of sovereign power is not political in the sense of ideological, and to that extent a distinction between law and politics exists. Nevertheless, legislation is inescapably political in content by the very fact that it is the primary instrument of policy, sanctioned by the state but made by those in government, and the historian of political thought will accordingly seek to connect specific pieces of legislation with the ideology of the governing party or regime. As for works of jurisprudence and legal scholarship, including legal history, any such legal discourse that is not formally law is open to being read for ideology, that is, not as law but for what it is politically trying to legitimate. For all this, however, realism cannot entirely instrumentalise law in relation to politics, and needs to supplement the concept of politics with that of the political.Footnote 23 Law presumes legitimate authority, but it is also one of the conditions of such legitimacy, because it is part of what makes public power different from the exercise of violence in a private capacity. Any state must establish that difference, and it does so, in part, by law. In other words, political power uses law as an instrument, but in that very use is simultaneously captured by law as something that cannot be reduced to just another exercise of political power. Nevertheless, this way of thinking must hold that the terms of that capture are themselves political. There is nothing outside the political that will independently ground the distinction between law and politics.

This conception of the autonomy of the political has a long history, and there is an equally long history of opposition from those who believe that law does not reduce to the political in this way. This includes not only lawyers and legal theorists, working from within law, but moral and religious philosophers who base the legitimacy of law on transcendental grounds, for example the law of God or natural law. But history of political thought in this vein, as we have seen, is strenuously opposed to any idea that universal and transtemporal religious or moral norms or principles govern the legitimacy of politics. It follows that any historical (and indeed contemporary) articulation of or appeal to religious law or moral law in the context of politics is purely ideological. This has nothing to do with sincerity of belief, which is outside the political arena. People may perfectly well be sincere in their belief when they say, for example, that something belongs to natural law. But in the political arena, to say that something is natural is irreducibly political. The same will equally be true of appeals to moral norms or secular ideals, for example the idea of inalienable human rights.

To sum up so far, then, a broadly realist style of history of political thought can provide a powerful analysis of the politics of discourse. It is perhaps most at home in tightly-defined modern domestic political contexts, but it can also extend to both international and imperial contexts – at least as seen from the centre out, or to the extent that empire is politically challenged from the colonies and former colonies in the same sense of ‘political’. Indeed, the modern history of empire is in some ways a perfect space for the analysis of how discursive legitimation in this form operates. Its potential to unmask the ideological bent of imperial legislation gives it a powerful critical edge, in potential synergy with the aims of critical legal scholarship within the global frame of imperial politics. No one can deny, surely, that law is at least to some degree an instrument of policy, and that unmasking its political instrumentality is a very effective way of undercutting law’s implicit claim to be beyond politics. Moreover, for a long period of its history the main form of international law was natural jurisprudence in one form or another, natural law being, as we have seen, a prime candidate for ideological exposure. But if history of international law adopts the same ‘outside’ of power, does that collapse critical history of international law into history of political thought? Can a strictly legal analysis capture ideological slant?

That question can be posed from the text end, too, as we did at the start. Does a piece of early modern natural jurisprudence, analysed as an ideological justification of European imperial practices, lose its nature as law under that analysis? A historian of political thought with an uncompromisingly realist viewpoint might be tempted to say yes. Grotius’s The Law of War and Peace, for example, may call itself law, may use legal language and appeal to legal principles, but it’s not really law. It just positions itself as such for its own political purposes. Such a response, however, is guaranteed to make historians of international law bridle. Who is the historian of political thought to say what is law and what is not? In what follows, then, I outline an alternative approach which is potentially more accommodating to a legal perspective on the texts that it studies.

1.4 History of Political Thought and the History of the Political

For all its critical drive, the extreme realist inflection of Skinnerian contextualism comes at some cost, both in terms of history and in terms of philosophy. It is invested in a Hobbesian (or ‘Hobbesian’, since its construction of Hobbes and of politics imply each other) vision of politics as, in some sense, true rather than ideological; and, for all its appeal to history, it cannot historically support that distinction. It excludes from political thought all types of thought that deny its premises, relegating them instead to a soft kind of philosophical moralism inadequate to cope with the hard realities of power. But by pushing all universal normative statements into illusion of some kind, whether ideological distortion or moral idealism, it backs both political thought and history into a corner. It leaves no room for the possibility that the moral is political, is ‘real’, and has a history as such.Footnote 24 Instead, history of political thought must accept the realist premises not merely on pain of ceasing to be political, but of ceasing to be history at all.

The enlistment of contextual history of political thought to drive a wedge between history and politics on the one hand, and a certain kind of philosophy on the other, is interestingly paralleled elsewhere in intellectual history, and extended to address the history of international law.Footnote 25 In both cases, however, it involves importing premises which are not contained in the bare principle of ‘meaning in context’ and which not all historians of political thought share. When it comes to political realism, they may quite well agree that certain kinds of contemporary political philosophy represent a form of moral pseudo-legislation to be avoided. But some of them think that to accept the realist premises is to lose rather than to gain critical purchase: at worst, simply to buy into the ideology of the modern state; at best, to write a form of history inadequate to handle pre-modern, non-Western and non-state-centric forms of political life and discourse. The strong ‘outside’ of both history and politics, on this model, disenfranchises from both history and politics those for whom the ‘inside’ is as real as the outside, particularly those whose forms of politics have their legitimacy inside sacred narrative or poetry.Footnote 26 A history of political thought that is genuinely global, therefore, needs to drop its conceptual investment in political modernity.

Accordingly, another approach to the history of political thought starts from the same basic conceptual architecture. Unlike the first, however, it takes no prior decision on the adjective ‘political’ that qualifies this ‘thought’ as an object of history, except that it will very broadly concern the way that human beings live and the norms that govern that life. This very loose and open-ended field cannot be further characterised from the outside, because none of its elements is a transhistorical constant, down to the very conception of a human being – indeed of reality itself – and a fortiori of politics. This kind of history of political thought, therefore, needs to move away from politics towards the political, just as we saw the realist position must do when approaching the phenomenon of law. By contrast, however, the ‘outside’ of political discourse on this second approach is not power but a form of life, which folds the political within it. In consequence, the historian needs to take what we might call an ‘inside out’ approach to its intellectual construction, and to open a dialogue with other forms of history, social and cultural, as well as cognate fields such as literature, anthropology and religion, none of which can acquiesce in the historical ‘reality’ proposed by political realism. That does not mean abandoning all historical distance or critical purchase. To adopt a perspective internal to an intellectual construction is not to buy into a truth-claim which depends precisely on the premise that it is not an intellectual construction, but really and truly the law of nature, or the word of God, or whatever.

To think about the history of the political in this way means, broadly speaking, shifting the emphasis from the political speaker or actor towards the other historiographical pole of language.Footnote 27 The potential for that move is already contained within the original Skinnerian model of legitimation, in which the terms of shared normative language both enable and constrain linguistic agency. Hence arises Skinner’s characteristic portrayal of the strong speech actor as an innovator, not a revolutionary, and the picture of contingent but ultimately far-reaching conceptual change that results from successive acts of innovation.Footnote 28 It remains true, however, that it appeals to a sharp sense of conflictual politics as what drives linguistic innovation, which is why it can be pushed towards political realism. But its distinctive historiographical tension can be relaxed in the other direction, too, towards a history of political languages or ways of talking. These provide a different kind of legitimation, or simultaneous normative enablement and constraint, at the level of broader culture and society. Different, because the shift of scale means that a political language cannot be the straight analogue of the speech act. A political language does not ‘have’ a context, a clearly distinct historical ‘outside’ in that sense; rather it is implicated in its own context, part of its own outside. It is both situated within a historical world and simultaneously involved in creating that world, thus creating, in part, its own historical parameters or its own time.Footnote 29 It is worth remarking here that the time of a political language is typically – at least in a modern European or more broadly Western context – neither the courte nor the longue durée, but that most elusive third element of Braudel’s tableau, the moyenne durée. One way of thinking about the history of such languages is as a way of understanding the rhythm or tempo of the historical moyenne durée .

There are affinities here with Michel Foucault’s understanding of discursive power, the way in which discourse constructs its own subjects and objects.Footnote 30 Foucault’s analysis helps us to see that in moving towards the pole of language we have not stopped talking about power, but it is power in a different sense: not the violence of putting someone in a straitjacket, or the authority to enforce it, but the power that constructs a madman who needs to be put in a straitjacket and the violence as therapy. Ultimately, it is the power of discourse to create its own reality, and consequently its own truth. It is of the essence of Foucault’s position that that construction has a history, but it is not one that can be written with the techniques of classical historiography. It is not that there is no ‘out there’ for the historian at all – as Paul Veyne pointed out in his classic essay on the subject, this form of analysis is in a way ultra-positivist in its approach to discursive data.Footnote 31 But it is an ‘out there’, not an outside of a story, because the words are opaque. They are not the trace of a past reality, the story of which can be told in the present; they are not storied in any way, not a ‘clue’, not ‘evidence’, not anything that points beyond themselves. They have no historical meaning in that sense. To give them this sort of meaning involves supplying subjects and objects from outside the discourse – in Veyne’s self-critique of his study of power in imperial Rome, ‘governors’ and ‘governed’ – and using them to interpret talk of bread and circuses or anything else. But the transhistorical reality of governor and governed is precisely what is being denied. Rather, we have to focus on the discourse as itself, the irreducible specificity of the way in which a certain discourse at a certain time constructs the king as a shepherd and the people as his flock, for example. The result is a form of Nietzschean genealogy, which stands in some sense at the opposite end of the spectrum from critical realism, but which loops back upon it in its critical enterprise. It is likewise a kind of unmasking, and likewise an essentially political form of writing.

The late Foucault characterised his genealogical approach as ‘having something to do with philosophy’ in the sense of ‘a politics of truth’ (une politique de la verité), ‘since’, he said, ‘I see no other definition of philosophy, if not this’.Footnote 32 As we saw at the beginning, the dialogue between history and philosophy has been key to the evolution of history of political thought as a discipline, and the shift towards the pole of language does indeed make space for mutual exchange between the two, resulting in a more philosophical style of history of political thought and a more historical style of philosophy. But, just as we saw earlier with the opposite end of the spectrum, most historians of political thought sympathetic to this way of thinking – and I am one, as will by now be obvious – do not, in the end, write Foucauldian genealogy or Foucauldian philosophy. They may want to preserve the insight that the construction of the political is a construction of power, that there is some violence, somewhere, that it normalises; likewise, that this construction implicates the historian in her own analysis of it, putting her in a relationship with power, be that one of resistance or complicity or (almost inevitably) both. But the governing trope of exposure, whether in a critical realist or a Foucauldian vein, is historically limiting however powerful it may be as critique. There needs to be some space for history (and for philosophy) as poietic, creative of new meaning – new stories, new worlds – and that kind of newness is created within, against, and through, old meaning or meaning in the past.Footnote 33

History of political thought in this vein, therefore, holds on to ‘meaning in context’ as an essential precondition for its historical enterprise. Although it is in general a less agent-centred approach, it may involve drawing contextual parameters for a specific speech act and using independent information about a specific actor in order to make historical sense of it. On this understanding, however, the time and place of the text – the context, the ‘outside’ that gives it historical meaning – is itself inside the time and place of language, which does not have a context or an outside in the same sense. It is not that there is no outside at all: political languages are embedded in social and cultural worlds that are made in multiple ways, not just with words, and they are inflected by these worlds just as they inflect them in turn. Nevertheless, the modulation between the inside and outside of language in the past destabilises the outside of the historian’s story in the present, who cannot get independent historical distance on either the one or the other, but has to work between the two, in some sense from the inside out. The result is a voice not entirely discontinuous with the voice of the classical histor , but not entirely continuous either, as it inserts itself into the time of its own history. From the perspective of traditional historiography, it may simply look historically unstable. But is also possible to see the history of political language as a space for new experiments in historical writing, creating new kinds of historical voice or historiographical form. One might think here of the later work of John Pocock, a history written from inside the frame of Gibbon’s Decline and Fall like a hermit crab inside a shell.Footnote 34

Finally, and in relation to creative possibilities for philosophy, the shift towards the pole of language impacts in turn upon the position of the speech act. Just as the instrumental model pulls the act towards the actor and the language towards the act, so to pull the approach in the opposite direction has the effect of freeing up the speech act from the actor. It is not pulled out of history altogether and then jammed back in, as in some older histories of philosophy. It remains politically active. But it can exist within language as an element of a historical construction of the political without being related to the immediate politics of action, even if what we know of the actor can be folded effectively into a broader story about language. In this way, the time of language provides the space for an intrinsically historical philosophy as well as a more philosophical history of political thought. ‘Our language ’, wrote Wittgenstein, ‘can be seen as an ancient city: a maze of little streets and squares, of old and new houses, and of houses with additions from various periods’.Footnote 35 To explore the streets and squares of past political language is to re-inhabit the city of language in the present, to create a new way of living in it. On one definition, that just is to do philosophy.Footnote 36 But whatever the newness that the philosopher or historian brings into the world, its creation is and must be political, just as in all history of political thought. To translate meaning from the past into the city of the present cannot be anything else.

How does all this affect the way history of political thought views law? First, as we have seen, this iteration does not see the state as the privileged instance of the political, and international politics a secondary form shaped around the space of the state. Rather, the political is equally but differently under construction in all times and places, and equally within and between different groups of people and different geographical areas. Law belongs within the political in this broad sense, or within the city as I can now call it, in my own historical translation of early modern political language.Footnote 37 But there is no prior commitment to any specific relationship between law and politics, nor to any particular kind of law as the privileged instance of law, nor to any particular field of its operation. At a more fundamental level, the way in which it frees up the speech act gives more space for law to be law. As we saw, political realism does not, in fact, collapse law into politics, giving it space to breathe within the political. But because that space is structured by sovereign power, that is, the space of the state, it is both predetermined and limited. Political languages, however, exist both conceptually and historically in a broader social and cultural world, in which law also operates and which it too serves to create. For the historian of political thought, tracking the contours of law, a discourse that penetrates every aspect of society, is one way of showing how the construction of the political implicates and is implicated in broader patterns of social, cultural and economic life.Footnote 38 In principle, therefore, this kind of approach to history of political thought is more open to the ways in which lawyers themselves think about law, as a very broad field involving multiple forms of discursive production. This is perhaps even more true of international law with its even greater multiplicity of different forms, registers and sources. This approach is also sympathetic to the ways in which international lawyers reach out to other disciplines, such as anthropology, to understand how that kind of law is constituted. From the point of view of a history of political thought written from the inside out, law is not only a central part of that inside, but presents itself intriguingly as another kind of ‘inside’ in itself.

If we look back from this perspective to histories of political thought written in the second half of the twentieth century, what impresses in practice is the enormous amount of attention devoted to law. In the European and North Atlantic world that was both home to this history in professional terms and its principal object of study, developments in legal discourse play a crucial role in the story of political conceptual change. The classic shape of that story is, in one way or another, the advent of political modernity, a story that begins in the European middle ages and ends at some point later in European or more broadly Western time, depending on how the historian has constructed the modern. Whatever the construction, modernity includes the modern state. But, while the shape of the story pulls the analysis of political discourse in that direction, two key features of this kind of history of political thought act as a brake. One is the commitment to historical contingency that marks the liberal historiographical voice. The metaphor of ‘foundations’ is used simultaneously to tie medieval and renaissance political discourse into a forward-looking story and at the same time to set it free. It is there in Quentin Skinner’s The Foundations of Modern Political Thought – Skinner was subsequently rather ambivalent about its teleological overtones – but also in Donald Kelley’s Foundations of Modern Historical Scholarship and Brian Tierney’s Foundations of the Conciliar Theory, all classics of the genre.Footnote 39 Just as with all historiographical choices, the metaphor is reflexive on the historian herself (mostly himself at this time, it must be said). To set the discourse free from the story simultaneously frees the historian in the same way, creating the historical distance key to the voice of the classical histor , holding the line between the inside and the outside of the story.

If we study these works carefully, and the traditions of scholarship that lie behind them, we see that a second countervailing pull on the narrative of modernity and the modern state is precisely law, and it is directly related to the first. Law has to be set free from the story, because it cannot be reduced to the political. The law of the European world in question, the law that plays such a key role in creating this European moyenne durée, is not primarily the law of kings or commonwealths; it is an intricate web of civil law, common law, feudal law and canon law, local law and custom. In the historiography with which we are concerned, these are understood equally as fields of legal scholarship and as potential arsenals of ideological weaponry. Both the historic pluralism of European law in this period, and the non-reductive handling of it (as both law and politics, equally), contribute to a history of political thought that is undoubtedly orientated towards Western modernity, but not conceptually invested in the modern state as the focal meaning of politics. It is, in good part, the attention to law which means that this historiography takes medieval political thought seriously, and sees medieval forms of government, including the church, as political on their own terms, without the Schmittian appeal to political theology that has become so popular as the way to integrate medieval political thought into the story of modernity. Rather, political discourse borrows from legal discourse and the same is true in reverse, as both lawyers and political philosophers struggle to create the normative language within which to legitimate both specific visions of law and politics and, simultaneously, the very fields of law and politics themselves.

Part of that struggle is the way in which law constructs its own history, which is also a classic theme of the historiography in question.Footnote 40 But there is a complexity involved because law, at least in the specific historical moyenne durée with which we are concerned here, does not always create its past in the same way. It does so in one way through its system of internal reference, the way in which it refers to the past of law in order to make law in the present. In so doing, it pulls things that were once outside law – the political and legal institutions of ancient Rome, in the case of civil law – inside law. Detached from its original reference, the city of Rome runs up and down the ladder of Roman legal time that stretches from the Roman past to the European present.Footnote 41 In creating its own time, law creates its own world, and its history is inside that world. For the historian of political thought, that history is nevertheless political, because law’s past is not the only past; there is a world outside law which gives political meaning to law’s construction of its own history. But that meaning cannot be properly understood if the historian insists on trying to establish the ideological valence in a tight political context of every single legal reference to Rome, for example. In many, indeed in most cases, there will be no such valence. That is not what the law is doing; it’s the wrong kind of meaning. Rather, the historian of political thought needs to take legal meaning seriously and work towards political meaning from the inside out.

As well as this, however, historians of political thought are also interested in those cases where law deliberately constructs a past for itself in order to position itself politically in the present. In this same European moyenne durée, the most spectacular example of this is probably the political mobilisation of legal antiquarianism in the late sixteenth and early seventeenth centuries. Legal scholars across Europe used the humanist techniques of historical philology deliberately to stop legal meaning running freely up and down the ladder of time. For François Hotman the internal time of Roman law is the ladder up which the tyranny of Rome crawls from the past to the present. It needs to be broken, as an act of both legal and political resistance, by freezing meaning at a certain time and place in the past. That means giving law an outside, a past that is not internal to law, in which legal terms have their true meaning. Political resistance, however, involves constructing that past as not merely historical but normative, in the ancient kingdom of Francogallia. In other words, Hotman’s ‘contextual’ history of law is irreducibly political, just as we have already seen with contemporary contextual history of political thought.Footnote 42

With Francogallia we have arrived back much where we left off at the end of the second section, with a work of early modern political jurisprudence. What we can see now, however, is that the either/or between law and politics with which we confronted The Law of War and Peace is too crude. Law is also a storymaker, also creates the past, and so the relationship between law and politics must always, in fact, be a three-way relationship between history, politics, and law. As works of legal antiquarianism and natural jurisprudence respectively, Francogallia and The Law of War and Peace might look like different kinds of legal scholarship, but both equally construct an ‘outside’ of legal meaning, the one in the ancient land of Francogallia and the other in nature. Each of these, equally, provides external interpretative traction on historical legal meaning, although in very different ways. In both cases, the choice and construction of law’s outside is irreducibly political, but it is not just a matter of politics. It is a historical, a legal and a political intervention all at the same time, and any historical appreciation of it needs to be able to move around between the inside and outside of all three fields.

1.5 Conclusion

The classic twentieth-century historiography of political thought represents a field of complex and non-reductive dialogue between history of political thought and history of law in its multiple forms. But it takes place largely on the ground of one specific European moyenne durée, and its governing historiographical metaphors hold the liberal line on historical contingency, and the related historical distance of the historian, in a very delicate balance. In the twenty-first century, that historiographical position has become harder to inhabit comfortably, even with the help of irony, just as has its professional home in Europe and North America. The challenge to Eurocentrism has gathered force, as we saw at the outset, resulting in a new demand for global history, including a global intellectual history. And the related collapse of the liberal consensus has equally challenged the liberal historiographical voice, pressing the question of political investment that it could hold at arm’s length. Within history of political thought, the weight of the discipline has simultaneously moved forward in time, away from the medieval, and indeed the early modern, towards the nineteenth and especially the twentieth centuries. All these factors have changed it significantly, giving its international and global turn a distinctly modern temporality and a more marked political edge. Although it is still true that most historians of political thought are somewhere in the middle, there is a detectable tendency for the discipline either to move towards politics or to take a genealogical turn in some form.Footnote 43 There is a certain loss of confidence in history as an art which of itself puts the past in relation to the present, generating an apologetics about traditional historical techniques and practices and an enthusiasm for genealogy as apparently the only way of saving the Janus face of history of political thought as a form of political thinking in the present.

If we consider the possibilities for dialogue between history of political thought and history of international law in this new world of the twenty-first century, we have already seen that some of these developments mesh effectively with the concerns of historians of international law. One iteration of the international, and of the global, is indeed modern, a function of the modern state and its imperial reach, modern capital and modern technology. These are major themes both of history of political thought and of critical history of international law alike. The turn to the global has, however, brought with it a renewed interest in the Braudelian longue durée, a scale of time whose relationship to modernity is one of the key questions for global history, and a fortiori for global intellectual history.Footnote 44 On the one hand it seems to offer the chance to break the back of modernity entirely and write a completely different kind of history, one that is ‘postmodern’ in an entirely new sense. But on the other, it has no end point but the present, with the risk that its history either begs the question of modernity or becomes a genealogy of the modern in one form or another.

Similar challenges, and similar opportunities, face a longue durée history of political thought in a global frame.Footnote 45 The historiographical creativity of the dialogue with law in twentieth-century history of political thought suggests, however, an alternative and more oblique way in. Instead of hitting the longue durée head on, we might think first about how to conceive the moyenne durée in a global frame, which could begin and end in any place or time. Here, the ‘inside out’ approach of history of political thought to medieval and early modern Europe, with its attention to non-state forms of law as an essential constituent of the political, might be well and truly set free of its ties to Western modernity and in the process transformed. Such a transformation would nevertheless be open, as I have already implied, to intellectual traditions such as scripture or poetry, which tend to be more longue durée precisely because of the way in which they pull the outside inside narrative. Footnote 46 Either way, there lies the possibility for new experiments in global historiography, both in political thought and in international law. One might think here of Lauren Benton and Lisa Ford’s construction of imperial interpolity, situated simultaneously in a global moyenne durée and in the ‘middle’ of empire.Footnote 47 We have to be prepared for such experiments to challenge our existing conceptions equally of politics, of law, and of history itself.

Established disciplines such as these tend to construct their outsides in ways that are both binary and ideological. But for an individual historian working within either political thought or international law, managing the inside and the outside of her story is a complex negotiation that cannot be reduced to one thing versus another. As we have seen, the binaries between law and politics, between history and philosophy, and between history and law, are not, in fact binaries, but triadic co-constructions of history, politics and law. And within each of these elements, there are different possible constructions available – different concepts of politics and the political, different kinds of history, different kinds of law. There is no one way in which either a historian of international law, or a historian of political thought, either may or should approach a text like The Law of War and Peace. It is the choice of the historian how best to create interpretative synergy between what her text is doing and what she is doing, to make a story that is resonant with meaning, be it legal or political. That does not mean that history of political thought and history of international law, in any form, will simply collapse into each other. The former’s interest in political meaning inevitably pulls law out of law and into a story that is not purely of law’s own making, however much it may acknowledge that law is also a story maker and a partner in creating the ‘outside’ of that same story. The conversation between history of political thought and history of international law will continue to have some sharp edges. But the recognition of the mutual implication of history, politics and law gives individual historians room to breathe, and room for the broader conversation to continue.


* I would like to thank my co-editors, Megan Donaldson and Martti Koskenniemi, for their infinitely rich and infinitely patient response to this chapter in the making. My thanks also to John Robertson for comments on the draft, and for the conference on ‘Time and the History of Political Thought’, which helped pull some things together in my mind. Finally, I would like to thank my father, Michael Brett, who studied history of political thought with Walter Ullmann in Cambridge in the 1950s, and whose insights into writing the history of Ismāʿīlism are somewhere in the background here. He sent me the article by John Wansbrough (Footnote n. 2) while I was myself studying history of political thought in Cambridge in the 1980s, introduced me to Braudel, and much else besides.

1 For the histor, and history as story more generally, see Paul Ricœur, ‘The Narrative Function’, in his Hermeneutics and the human sciences, ed. and tr. John B. Thompson (Cambridge: Cambridge University Press, 1981), 274–96. For the sword, ‘la espada que fue espada/en otra mano’, Jorge Luis Borges, ‘Tankas’, in The Gold of the Tigers, tr. Alastair Reid (Harmondsworth: Penguin Books/Allen Lane 1979), at 102–3.

2 See John Wansbrough, ‘“Res ipsa loquitur”: History and Mimesis’. The Albert Einstein Memorial Lecture (Israel Academy of Sciences and Humanities, 1987).

3 Ricœur, ‘The Narrative Function’, at 291. Ricœur mentions Paul Veyne, who did not call his book ‘What is history’, but ‘How to write history’ (see Footnote n. 31).

4 See the Introduction in Richard Rorty, J.B. Schneewind and Quentin Skinner (eds.), History and Philosophy: Essays on the Historiography of Philosophy (Cambridge: Cambridge University Press, 1984).

5 See Gerry Simpson’s contribution (Chapter 4 in this volume), for a multi-faceted exploration of the limits of method in history.

6 Q.R.D. Skinner, ‘Meaning and Understanding in the History of Ideas’, History and Theory 8(1) (1969), 353, repr. along with several other programmatic articles in James Tully (ed.), Meaning and Context: Quentin Skinner and His Critics (Princeton: Princeton University Press, 1988). It is not my purpose here to endorse these reductions, since the field of history of political thought is both variegated and changing, as I suggest in conclusion. What I say in the following about ‘contextual history of political thought’ is not intended, therefore, necessarily to apply to all history of political thought. However, since the line between this approach and others within the field is not clear-cut, I have not always used the qualifier ‘contextual’.

7 Ludwig Wittgenstein, Philosophical Investigations, tr. G.E.M. Anscombe (Oxford: Clarendon Press, 1968), §7.

8 Compare, for example, ‘Meaning and Understanding’ with Q.R.D. Skinner, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998), ch. 3: ‘Freedom and the Historian’. For my own earlier reflection on the subject, see Annabel Brett, ‘What Is Intellectual History Now?’, in D. Cannadine (ed.), What is History Now? (London: Palgrave Macmillan, 2001).

9 See Kari Palonen, Quentin Skinner: History, Politics, Rhetoric (Cambridge: Polity, 2003), at 4760, 78–81; Mark Goldie, ‘The Context of The Foundations’, in Annabel Brett and James Tully, with Holly Hamilton-Bleakley (eds.), Rethinking the Foundations of Modern Political Thought (Cambridge: Cambridge University Press, 2006), 319.

10 See, for example, J.G.A. Pocock, ‘The Concept of a Language and the métier d’historien’, in A.R.D. Pagden ed., The Languages of Political Theory in Early Modern Europe (Cambridge: Cambridge University Press, 1985).

11 See David Armitage, ‘The International Turn in Intellectual History’, in Darrin M. McMahon and Samuel Moyn (eds.), Rethinking Modern European Intellectual History (Oxford: Oxford University Press, 2014), 232–52.

12 See Jacques Derrida’s simultaneous appreciation and critique of speech act theory, ‘Signature Event Context’, in Margins of Philosophy, tr. Alan Bass (Brighton: Harvester Press, 1982), 307–30; Warren Boutcher, ‘Unoriginal Authors: How to Do Things with Text in the Renaissance’, in Brett and Tully (eds.), Rethinking the Foundations, 73–92. I make the case that history of political thought can use deconstructive techniques of reading in ‘What Is Intellectual History Now?’, at 123.

13 See Gérard Genette, Paratexts: Thresholds of Interpretation, tr. Jane E. Lewin (Cambridge: Cambridge University Press, 1997), who talks of the paratext as ‘a zone not only of transition but also of transaction: a privileged place of a pragmatics and a strategy, of an influence on the public’ (‘Introduction’, p. 2, emphasis in the original).

14 See Peter Gordon, ‘Contextualism and Criticism in the History of Ideas’, in McMahon and Moyn (eds.), Rethinking Modern European Intellectual History, 32–55; critical response in Matthew Specter, ‘Deprovincialising the Study of European Ideas: A Critique’, History and Theory 55 (2016), 110–28. Gordon allows a continuing role for context in the practice of intellectual history, but argues that it cannot be exhaustive of a historical approach. On this I agree (in fact, I think many ‘Cambridge school’ historians would agree, since, as Gordon acknowledges, they do not have a shared methodological approach). But, by the same token, the polemical language of ‘provincialism’ and ‘containment’ seems to me to be misplaced, or at least to target a straw man.

15 The argument against contextualism in history of international law is made by Anne Orford, ‘On International Legal Method’, London Review of International Law 1(1) (2013), 111–97; critical response in Lauren Benton, ‘Beyond Anachronism: Histories of International Law and Global Legal Politics’, Journal of the History of International Law 21(1) (2019), 740.

16 Tully’s introductory chapter Meaning in Context (Footnote n. 6) is entitled ‘The Pen Is a Mighty Sword: Quentin Skinner’s Analysis of Politics’, for that reason.

17 Benton, ‘Beyond Anachronism’, at 24.

18 The gap is identified in Tully, ‘The Pen Is a Mighty Sword’, at 12.

19 See, classically, the account of ‘real politics’ in Raymond Geuss, Philosophy and Real Politics (Princeton: Princeton University Press, 2008), and before that History and Illusion in Politics (Cambridge: Cambridge University Press, 2001), esp. 26–8 and 21–8 respectively on the subject of power. For an excellent discussion of the political realist position, see Michael Goodhart, Injustice: Political Theory for the Real World (Oxford: Oxford University Press, 2018), esp. chs. 1 and 3. I am grateful to Duncan Bell for his pointer to this work.

20 For the field of action, see Geuss, Philosophy and Real Politics, 11, 25 (‘To think politically is to think about agency, power and interests’).

21 Footnote Ibid., 34–6 for legitimation; 50–5 for ideology, quotation at 52.

22 Footnote Ibid., 10–11.

23 I am indebted to Martin Loughlin, Political Jurisprudence (Oxford: Oxford University Press, 2017), ‘Introduction’, for the distinction between politics and the political as key to handling law within a strongly realist, state-centric construction of politics.

24 For these concerns from the point of view of political theory, see Goodhart, Injustice, ch. 3, and Bonnie Honig and Marc Stears, ‘The New Realism: From Modus Vivendi to Justice’, in Jonathan Floyd and Marc Stears (eds.), Political Philosophy versus History? Contextualism and Real Politics in Contemporary Political Thought (Cambridge: Cambridge University Press, 2011), 177205.

25 Ian Hunter’s contrast between the political and the historical on the one hand, and the metaphysical on the other, goes back to Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001) and is deployed with reference to contextualism in his ‘The Contest over Context in Intellectual History’, History and Theory 58(2) (2019). Relevant to the history of international law, see for example Ian Hunter, ‘Global Justice and Regional Metaphysics’, in Shaunnagh Dorsett and Ian Hunter (eds.), Law and Politics in British Colonial Thought (London: Palgrave, 2010).Hunter is not a political realist, but the way in which he links philosophical productions to an intellectual and professional habitus constitutes a distinctive interpretative lens with its own consequences for reading universals.

26 See, for example, Michael Brett on Fatimid eschatology in The Rise of the Fatimids (Leiden: Brill, 2001), e.g. at 127 (‘the token value of the names … was more important than the existence of such persons in the flesh. The letter of the Mahdi to the Yemen marks the beginning of the attempt to reduce the one to the other’), or Sheldon Pollock’s thoughts on Sanskrit kāvya in ‘Cosmopolitanism, Vernacularism and Premodernity’, in Samuel Moyn and Andrew Sartori (eds.), Global Intellectual History (New York: Columbia University Press, 2013), 5980.

27 See Sudipta Kaviraj, ‘On the Historicity of “the Political”: Rajaniti and Politics in Modern Indian Thought’, in Michael Freeden and Andrew Vincent (eds.), Comparative Political Thought: Theorizing Practices (London: Routledge, 2012), 2439, for the engagement with the concept of a language in understanding the distinctive shifts and contours of the Indian ‘political’.

28 For a completely new reading of innovation in this sense, see Joel Isaac’s contribution to this volume (Chapter 12).

29 The history of concepts, Begriffsgeschichte, belongs broadly within this kind of approach, and shares (on some understandings) a similar sense of modulation between inside and outside and the consequent impact on temporality.

30 The author who has done most work on the interface between Foucault and history of political thought is James Tully; see, for example, his Foucauldian reading of Locke in An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), 179–241, and Public Philosophy in a New Key, 2 vols. (Cambridge: Cambridge University Press, 2008), Vol. 1, pt. I.

31 See Paul Veyne, ‘Foucault revolutionne l’histoire’, in Veyne, Comment on écrit l’histoire? (Paris: Seuil, 1979), 347–85, here at 355–8.

32 Michel Foucault, Sécurité, territoire, population (Paris: Seuil/Gallimard, 2004), 4.

33 I make this point about poiesis and making sense in ‘What Is Intellectual History Now?’, 123. But for ‘newness’ here I am indebted to Homi Bhabha, ‘How Newness Enters the World: Postmodern Space, Postcolonial Times and the Trials of Cultural Translation’, in his The Location of Culture (London: Routledge, 1994), 303–37, himself indebted to Salman Rushdie in The Satanic Verses.

34 J.G.A. Pocock, Barbarism and Religion, 6 vols. (Cambridge: Cambridge University Press, 1999–2015).

35 Wittgenstein, Philosophical Investigations, § 18.

36 See Richard Rorty, Contingency, Irony and Solidarity (Cambridge: Cambridge University Press, 1989). Compare Bhabha’s reference to Rorty in ‘How Newness Enters the World’, at 336.

37 See Annabel Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton: Princeton University Press, 2011).

38 See the role of law in Anna Becker’s recent study of gender and the construction of the political, Gendering the Renaissance Commonwealth (Cambridge: Cambridge University Press, 2020), and her contribution to this volume (Chapter 13).

39 Quentin Skinner, The Foundations of Modern Political Thought, 2 vols. (Cambridge: Cambridge University Press, 1978); Donald Kelley, Foundations of Modern Historical Scholarship: Language, Law and History in the French Renaissance (New York: Columbia University Press, 1970); Brian Tierney, Foundations of the Conciliar Theory: The Contribution of the Canonists from Gratian to the Great Schism (New York: Cambridge University Press, 1955, 2nd ed., Leiden: Brill, 1998). This latter is a history of the church and its law, but on this understanding it is no less history of political thought for that.

40 It is part of the ‘history of history’ approach associated particularly with John Pocock. See his first book, J.G.A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1957), and Kelley, Foundations of Modern Historical Scholarship, as for Footnote n. 39.

41 I am indebted here to Magnus Ryan’s work on the way in which late medieval and Renaissance Roman legal scholarship gradually prised the language of ‘city’ away from ‘the city of Rome’, such that it was ultimately not Rome but the city – the civitas, what would become the state – that could run up and down the ladders of historical time as a transtemporal legal category. See Magnus Ryan, ‘Roman Law in Medieval Political Thought’, in David Johnston (ed.), The Oxford Companion to Roman Law (Oxford: Oxford University Press 2014), 423–51; Magnus Ryan, ‘Historicity and Universality in the Political Thought of the Medieval Roman Lawyers’, in John Robertson (ed.), Political Thought, Time and History (Cambridge: Cambridge University Press, forthcoming).

42 Hunter, ‘The Contest over Context’, draws a similar parallel between seventeenth-century constitutional scholarship and modern contextual historiography, but to my mind downplays the politics involved in making an argument about history.

43 It is worth saying here that genealogy is often quite fluidly understood, not always in a strictly Foucauldian or Nietzschean sense. See, for example, Melissa Lane, ‘Doing Our Own Thinking for Ourselves: On Quentin Skinner’s Genealogical Turn’, Journal of the History of Ideas 73(1) (2012), 71–82.

44 See Samuel Moyn and Andrew Sartori, ‘Approaches to Global Intellectual History’, in Moyn and Sartori (eds.), Global Intellectual History, 3–30, and the concluding reflections in the same volume by Frederick Cooper (‘How Global Do We Want Our Intellectual History to Be?’, Footnote ibid., 283–94) and Sudipta Kaviraj (‘Global Intellectual History: Meanings and Methods’, Footnote ibid., 295–319).

45 See David Armitage, Civil Wars: A History in Ideas (New Haven: Yale University Press, 2017), introduction, and commentary in Global Intellectual History 4(3) (2019), Special Review issue.

46 See above, Footnote nn. 26 and Footnote 27, and see Julia McClure’s contribution in this volume (Chapter 9).

47 Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (Cambridge, MA: Harvard University Press, 2016).

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