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As the future of international law has become a growing site of struggle within and between powerful states, debates over the history of international law have become increasingly heated. International Law and the Politics of History explores the ideological, political, and material stakes of apparently technical disputes over how the legal past should be studied and understood. Drawing on a deep knowledge of the history, theory, and practice of international law, Anne Orford argues that there can be no impartial accounts of international law's past and its relation to empire and capitalism. Rather than looking to history in a doomed attempt to find a new ground for formalist interpretations of what past legal texts really mean or what international regimes are really for, she urges lawyers and historians to embrace the creative role they play in making rather than finding the meaning of international law.
In 1917, the October Revolution and the adoption of the revolutionary Mexican Constitution shook the foundations of the international order and international law in profound, unprecedented and lasting ways. The Mexican and Russian revolutions posed fundamental challenges to the still embryonic profession of international law, its practitioners then largely committed to various forms of liberalism and capitalism. In bringing the ‘social question’ to the forefront of international legal debates, the Mexican and Russian revolutions offered new ways of thinking about foundational concepts of property, statehood and non-intervention – and indeed about the very nature of law itself.
In 1917, the October Revolution and the adoption of the revolutionary Mexican Constitution shook the foundations of the international order in profound, unprecedented and lasting ways. These events posed fundamental challenges to international law, unsettling foundational concepts of property, statehood and non-intervention, and indeed the very nature of law itself. This collection asks what we might learn about international law from analysing how its various sub-fields have remembered, forgotten, imagined, incorporated, rejected or sought to manage the revolutions of 1917. It shows that those revolutions had wide-ranging repercussions for the development of laws relating to the use of force, intervention, human rights, investment, alien protection and state responsibility, and for the global economy subsequently enabled by international law and overseen by international institutions. The varied legacies of 1917 play an ongoing role in shaping political struggle in the form of international law.
In his Philosophical Investigations, Ludwig Wittgenstein declared: ‘We must do away with all explanation, and description alone must take its place.’ Michel Foucault in turn repeatedly referred to his method of study as description, arguing that the role of philosophy is not to reveal what is hidden, but rather to make us see what is seen. This essay suggests why the turn to description as a mode of legal writing might be a productive move at this time.
The proper relation between law and order has long been a contested one. Attempting to determine the proper relation between international law and international order is an even more difficult task. Does international law exist to create and maintain international order? Should this be one of the functions of international law? If so, what kind of order is international law designed to secure and maintain? Does constituting order always take priority over all other goals, values or interests? Who decides? These are particularly difficult questions for international lawyers, because international law has predominantly been understood as a means of governing relations between sovereign states. In this view, states are the authors of law and the bearers of pluralism. International law only exists to the extent that sovereign states consent to be bound by specific obligations. International law, like private law, is thus portrayed as a system for governing relations between equals. In the case of international law, the equality of subjects plays an even more fundamental role than in domestic legal systems, where the idea that agreements must be honoured finds a guarantor in the state. Because international law is a system in which there is no higher guarantor, international jurisprudence is strongly shaped by the notion of consent and by the idea that law only exists to bind states to their commitments. According to this view, international lawyers fulfil their function when they find ways for these alienated entities to express their national interests or their instrumental objectives in the law they bring into being.
Until the Day of Judgement, the Augustinian teaching on the two kingdoms will have to face the twofold open question: Quis judicabit? Quis interpretabitur? [‘Who will decide? Who will interpret?’] Who answers in concreto, on behalf of the concrete, autonomously acting human being, the question of what is spiritual, what is worldly and what is the case with the res mixtae.
Thomas Hobbes taught that in a fractured world, where tradition, shared values or a common God no longer guaranteed meaning, the lawfulness of authority could only be grounded upon the capacity to protect. Yet the turn to protection as the basis of authority raised a new question: who decides? Who decides what protection means and which claimant to authority can guarantee it? Who decides whether a particular government is in fact capable of protecting its population and bringing peace to its territory? Who has the authority to judge the legitimacy of rulers? Who speaks for peace in a particular time and place?
Those questions were central to the project of establishing and consolidating the authority of the modern state. When Hobbes argued that the lawfulness of authority was grounded upon the capacity to protect, he was playing a part in a much broader struggle between church and state, or spiritual and temporal authority. Central to that struggle was the question of whether the Pope had jurisdiction to declare that a ruler was unlawful and should be deposed or resisted.