This chapter discusses the conceptual foundations of the notion of social justice during the Enlightenment before surveying the volume’s achievement in historicizing twentieth-century European proposals. Social justice presupposed the invention of the “social,” in and through the insight into informal cultural and institutional ordering. And while social justice was coined earlier in the nineteenth century, the concept became unavoidable later in the century as both left liberals and Roman Catholics responded to individuals and laissez-faire, in part by innovating a new ‘social science’. This chapter concludes by speculating about the future trajectory of claims on the notion of social justice.

This chapter argues for the need for both history and law to recommit to the broad tradition of social theory, in order for either to make progress on its own, let alone for one to plausibly reorient the other. From the perspective of this argument for common need rather than crossdisciplinary largesse, it is not going to be good enough to suppose that contemporary historiography is already well-positioned for relevance to other fields. In the last fifty years, it has lost touch with the tradition of social theory, thanks to the linguistic and cultural turns and a certain fetishization of contingent outcomes that have been emphasized in critical and genealogical sorts of history. The chapter proceeds to map three ongoing quandaries in social theory, since it is only within the discussion of each that the relationship of history to law takes on its significance. These are the 1) the dilemma of representations versus practices; 2) the reconciliation of contingency and determination; 3) and the assessment of the normative and the political, both as something to explain in diverse past settings but also what might motivate and orient present inquiry in the first place.

This chapter revisits the Universal Declaration of Human Rights (UDHR) and some thinkers who addressed social rights in its time, arguing that it is best understood historically as a charter for social citizenship. There is little evidence that the UDHR was intended – let alone noticed – as a call for supranational protection or a lodestar for non-governmental pressure. Rather, the UDHR was a template for a new kind of state, thus both national and governmental in its implications. This unprecedented new kind of state, birthed by the Second World War and ultimately consecrated around the world, afforded social protections and perhaps even egalitarian distribution. The restoration of the UDHR to its time poses new questions about how it was that human rights could indeed become at a later date so strongly associated with the supranational and non-governmental even as any commitment to distributive equality evaporated. Put in terms of a formula, the UDHR is an artefact of a pre-neo-liberal age that found itself celebrated in a neo-liberal one – but only once it was reinvented first.

Somewhere between 17 and 22 million soldiers and civilians perished in the Great War between 1914 and 1918. At least 20 million people, and perhaps as many as 50 million, died in the great influenza of 1918–1919. But somehow the deadliest twentieth-century pandemic has seemed uninteresting, as if it was acceptably forgotten, or as if there were little to say about it.

Tens of thousands of books about the Great War have been written in English, but fewer than fifty about the great influenza of 1918–1919. Appropriately, one of the best of those few books is entitled America’s Forgotten Pandemic. About the experience of most of the world beyond America and Europe in the most renowned global plague before our own moment, even less was retained.

This chapter considers the tension between humanitarianism and human rights and argues that there has been a humanitarization of human rights that has been to the detriment of human rights.

The 1970 Friendly Relations Declaration is a peculiar document. This is so even by comparison to the battery of legally non-binding but rhetorically charged and politically resonant General Assembly resolutions with which the non-aligned world created through decolonisation attempted to craft a new international order in the decades after the Second World War. Consisting of seven basic concepts of contemporary international law, the 1970 resolution purports to map the rules, norms and practices that States and international lawyers are willing to recognise as necessary for a real commitment to ‘friendly relations’. It spells out with varying degrees of clarity and specificity a host of propositions, many of which had already found at least partial expression in multilateral treaties, UN resolutions and rules of customary international law prior to October 1970, when the resolution was finally adopted formally. The result is a lengthy and at times unwieldy document cobbled together through a series of complex negotiations – an instrument that is more a patch-and-mend aggregation of bits and pieces of conceptual furniture than it is a crystalline conceptual blueprint for the new world orders envisioned by the greater and lesser powers of the 1960s.

It often happens in the history of thought that philosophers come belatedly to a popular theme and attempt to make it serve new purposes. They volunteer to articulate intuitive sentiment and to make implicit dilemmas explicit. And they take what emerged as partisan slogans and determine whether to raise them to the level of philosophical claim. Just as regularly, however, the discourse that stimulated the thinkers proves stronger than their innovations. It is not, after all, as if the public noise around concepts, especially new ones, is stilled when the philosophers turn to canonize them. Hannah Arendt and Claude Lefort, the most serious theoreticians of what appeared to so many as a novel and unprecedented phenomenon of “totalitarianism” in the last century, attempted to make an extant discourse rigorous. They developed proprietary approaches that reshaped a popular intellectual discourse. To an impressive extent, however, their interventions did more to amplify the impact and to extend the longevity of the popular theories of “totalitarianism” they dearly hoped to reorient.

Louis Henkin (1917–2010) is remembered as the leading American legal advocate of human rights, and a prime or even the premier contributor to the international movement in their name. “There is no person on the planet,” observed his follower Harold Koh, dean of Yale Law School and later State Department legal adviser, late in Henkin’s life, “who has not found shelter or affirmation in his ideas.”

It is not unthinkable that in considering human rights law one might flirt with whether its norms or practices are a case of “Judaism terminable and interminable,” as Henkin’s colleague in Jewish history at Columbia University Yosef Yerushalmi famously described psychoanalysis, whatever the modern and secular trappings of both.