The Turning Aside: On International Law and Its History
PROGRESS IN INTERNATIONAL LAW, Rebecca M. Bratspies, Russell A. Miller, eds., Martinus Nijhoff Publishers, pp. 71-93, 2008
Posted: 17 May 2007 Last revised: 14 Jan 2008
The purpose of this paper is to take a closer look on the current phenomenon of a growing and still expanding interest in the history of international law. International lawyers, but also historians, turn to the history of the discipline, to the past itself as well as to its study and knowledge. Throughout the new and renewed discourse, history is closely intertwined with theory, and even with political theology. Often, it seems, the past is understood as providing traces of a path (or at least a pathfinder) into the complex future of a fragmented and differentiated international community.
The paper will argue that the study of international law's history requires not only careful contextualizations of law and history, but also thoughtful distinctions. If history is to sharpen and enlighten our understanding of the present, intradisciplinary boundaries are to be respected. History is not theory is not political theology. Each discipline is, respectively, in need to reflect upon its potentials, risks and limits.
The paper will proceed in three steps: Following a short, yet festive praeludium (II.), it will start by sketching the current debate about the history of international law (III.). Needless to say, it would be impossible a task to provide here a comprehensive survey. The observations described will merely be an extended promenade, introducing the reader to a variety of voices and tunes along the way. The text will then turn to the interrelatedness of history and theory, stressing the need to make the study of history a synchronic movement of distance and immersion, thereby recognizing our complex relationship to history and time (IV.). By finding their way between past and future, international lawyers can draw from experiences from other times and disciplines (V.). After all, "Uses and Disadvantages of History for Life" have been discussed before.
In conclusion, there will be a return to the library shelves which had been visited in the opening part (VI.). There will be another bibliophile impression, alluding to an indeterminacy which is common to both history and theory of international law. And to the choices which are ours to make.
Keywords: International Law, Legal History, International Relations, Legal Theory
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