Anne Orford - Histories of International Law and Empire

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ladies and gentlemen it's my pleasure to a loafer with my County curvature of international law at the University of Melbourne she's currently invited professor in advise one when we're students have had the chance to appreciate the wide range of our competences which in legal theory or in the in very practical law I would say because she has been teaching about food security and international law and so precise and often accepted to be a guest for this lecture which is a choic lecturer or electric organized by the European Society of international law and the Solano's school and her father is a specialist in legal theory beside her left in the evening was eating well and that that's why she has chosen for this lecture the topic of histories of international law and Empire she's currently editing together with Professor Rothman and Oxford Handbook of international legal theory which will be an opportunity to to promote new reflection in international legal theory for this lecture she will speak about in fact the me the lecture will be I have prune ism and because you will speak you more about methods and looking more at methods than at context so I give her immediately the floor and of course superconductor was the opportunity to to ask a question so many thanks it's a great pleasure to be back here in Paris at this very dynamic law school and I would particularly like to thank Ellen Bruins febri my host for inviting me both to visit at patio and also for arranging for me to give this lecture so as she's already pre figured the lecture focuses on histories of international law and Empire and more particularly on the methodological challenges we face when we write or indeed when we read histories of international law and Empire in recent years we've seen a real expansion of interest and scholarship concerned with the question of whether and of how the Imperial past is relevant to thinking about the present of international law and international politics and we've seen interest in the contemporary relevance of Empire fewer fuel new fields of study in world history in philosophy politics post-colonial studies critical geography literature intellectual history and most importantly for us here tonight in international law and indeed the Sorbonne has been one of the sites of this work on the histories of international law in Empire not only with the work of Professor Emmanuel GA on Vittal but also in the edited volume on imperialism and international law that Emmanuel and Alan Koh edited in 2007 and the new volume that they're co-editing with Marc to fan on analyzing third world approaches twin national ought to come out this year and just next week will see the launch of perhaps the most monumental contribution to this writing of international legal histories that is the public publication of the Oxford Handbook on international legal history it's edited by Bardot Fassbender and Anna Peters and will be launched in Berlin next week and in their introduction to that handbook Fassbender and Petters described their aim of producing a truly global history of international law one that they say will explore the Living bond the living bond between the past and the present now that interest in and that idea that there's a living bond between the past and the present represents an implicit challenge to the methodological approach that has dominated at least Anglophone intellectual history over the past decades so you may well be very familiar with this contextual contextual a school of intellectual history that's come out of Cambridge so it's known as the Cambridge School associated with Quentin Skinner and I think this school has really cultivated a sensitivity to anachronism as one commentator has put it particularly amongst Anglophone scholars of early modern political thought so historians influenced by this school argue that past texts must not be approached anachronistically they say that we shouldn't look to the Past with current debates current concepts current problems current vocabularies in our minds because then we will necessarily misunderstand those past texts that we're reading and we shouldn't search for the development of canonical ideas or fundamentals themes or timeless doctrines so that's to commit the sin of anachronism so the clear demarcation that underpins much current historical research requires that everything must be placed in the context of its time and present-day questions mustn't be allowed to distort that our sense of that context so as the critical historian Constantine result has commented ironically anachronism is the sin against the holy spirit of history now the work of international legal scholars exploring the relation of early modern thinkers to contemporary doctrines has therefore had as you could imagine quite an ambivalent reception amongst historians and even legal scholars who ally themselves with this contextual school now I'm going to discuss that more fully in a minute but you can get a sense of its tone and its flavor just from one one quote from what is actually a series of challenges to international legal scholars by the intellectual historian Ian Hunter and so Hunter argues that recent critical histories of Gentilly Brocius Hobbes poof and off and vert L have in his words been dogged by debilitating anachronism and present ism I think in some ways international lawyers are more vulnerable to such attacks then our legal historians in other fields so legal historians writing about a famous trial or an eminent jurist writing the new history of the Sorbonne law school for instance rarely faced concerted challenges to their methods from scholars in other disciplines so even if we're all good realists and we all know that legal transcripts or cases are never purely legal we rarely see legal historians being criticized for Explorer the relevance of a past case for present law they might be criticized for other things but the idea that we might relate to the part the past to the present isn't one of them so after all as lawyers we're trained in making meaning move across time we learn for example how to make a plausible argument about why one case should stand as a precedent for a current case or the reverse why we should distinguish a past case as having no bearing on the present I think because international law didn't exist as a discipline as such or a profession or a set of practices before the mid 19th century we don't have that kind of uncontested claim to disciplinary ownership of text from earlier periods so with us often seeing a confrontation around this question of method between international lawyers and between thinkers from other from other fields so my lecture then is an attempt to work through some of those methodological challenges that we face when we try to write histories of international law and Empire and more particularly the lecture is a defence of the place of anachronism in international legal thinking so I want to argue that international legal thinking is necessarily Anna chronic Anna chronological time that is that the operation of modern law is not governed solely by a chronological sense of time in which events and texts are confined to their proper place in a historical progression from then to now so I want to suggest that if the self-imposed task of today's contextual list historians is to think about concepts in their proper time and place the task of legal scholars is necessarily to think about how concepts move across and space so that doesn't mean being reckless about how concepts move but nonetheless it does mean attending to the question of whether and how concepts move across time so rather than being fixed and immutable I'm suggesting that the past may be a source of present obligations and this lecture is then a pursuit of this argument about the Anna chronic nature of law through an exploration of the particular role in which the past plays in debates about imperialism and its relevance for the present internationalist politics so in order to pursue this argument about the sense of laws anachronistic quality my talk this evening will do three things first I want to sketch the interrelationship between two figures who are claimed as founding fathers of international law one is the Dominican theologian Francisco de Vitoria who lectured at the University of Salamanca in the 16th century and the other is the American jurist James Brown Scott perhaps not quite such a canonical figure unless some of you have a Columbia students visiting in Paris in which case II maybe so Scott who was a professor at Columbia reclaimed to Victoria for international law in the early 20th century so the relationship between Scott and Victoria illustrates the concept that complex and temporally overlapping ways in which I want to suggest lawyers and legal institutions think about past texts and their authors so first Victoria and Scott second what to suggest that attending to the relation of those two figures challenges the clear separation of past and present that underpins both mainstream international legal doctrine and contextualized historical scholarship and third I'll suggest ways in which the relation between Scott and Victoria illustrates the Anna or anachronistic quality of law more generally so to start with Victoria I suspect Vittoria needs a little introduction for most of you the Victoria with Domingo de Soto was one of the founders of what we know today as the school of Salamanca a group of theologians and jurists who taught at the University of Salamanca during the sixteenth century and whose influence spread throughout Spain and Latin America in a number of critical legal scholars including Antony ng and Marty Castillo may have recently turned their attention to Victoria so the school of Salamanca sought to work within the theological tradition of Sir Thomas Aquinas while accommodating the term mystic genre to the changes wrought both by the emergence of new commercial practices and political forms within Europe and by Spanish imperialist expansion so for Anglophone international lawyers vitória is best known for the two relatio knees or public lectures that he gave at Salamanca in January and June 15:39 during this nova to invent s or the indians recently discovered and do you reveille the law of war and those lectures were two of the most significant occasions on which victoria systematically explored the grounds for the spanish claim to dominion in the indies international lawyers treat these lectures as part of the international legal canon at least in part due to the efforts of the second founding father I mentioned James Brown Scott or at least as I said in opening that's the case for the Anglophone international legal community so Scott was a major figure in early 20th century American international legal circles both professionally and academically according to one of his contemporary Scott was a moralist for whom international law was more than a study or a profession I'm quoting it was in fact a religion and Scott had a major influence on the establishment of international law as a professional discipline in the US and more generally on the development of new practices of international law for the coming American commercial century and on the rationalization of those practices so Scott was a believer in international arbitration he was a believer in freedom of trade and navigation he was a believer in the League of Nations and its new mandate system and he was a believer in the need to develop former colonial territories and he played an extremely important role in establishing international law in the u.s. as a profession that was committed to those ends he also while a professor at Columbia instigated the establishment of the American Society of international law he established the American Journal of international law and he personally funded its first issue he was solicitor position now called legal advisor at the u.s. Department of State for five years before World War one and resigned from that office to accept the role of secretary of the newly created Carnegie Endowment for international peace so that endowment was gifted by the steel baron Andrew Carnegie with a budget of ten million dollars to be used to hasten the abolition of international war and Scott was also a legal adviser to the American Commission to negotiate peace that sailed here to Paris with Woodrow Wilson in 1918 of particular importance for rationalizing these new practices of arbitration of administration and of free trade was Scott's role as a teacher and scholar and perhaps his most enduring influence in that role was his edit editorship of akan funded series entitled classics of international law and it was in this series that he was able to express his enthusiasm for Victoria to public to publish the lectures that I've mentioned and also to write a book himself about other Spanish tradition in all 22 titles were published in that series including creditors by grossest Vittal Victoria Suarez Gentilly puffin Dorf and wolf and in a letter explaining why the Carnegie Endowment should continue publishing this series after World War one Scott explained his sin service of its importance in these terms international law as a system will survive the calamitous and brutal war of 1914 but it will be shattered in the conflict and many of its provisions will be bruised if not destroyed the general public appears to regard international law as a modern invention and looks to the Hague conventions as the source of its authority so says Scott it's especially important at this juncture that the general public should know and that the professors and students of international law should be in a position to make it clear that international law is not a thing of convention and compromise but the slow and painful outgrowth of centuries in response to the needs of nations and people and he said while those people are distant in space and in thought they must have dealings one with the other and must have those dealings conformed to law if justice and its perfected fruit peace is ever to prevail so we can hear there an argument for Loris something other than purely chronological loris something that doesn't simply derive its authority from the process of negotiation that's not simply the stuff of convention but that can find it origins through the slow and painful outgrowth of centuries Vittoria thought Scott was a liberal and he was a humanist Scott reads vitória as a liberal and a humanist he welcomes Vittorio's thinking on the need for Trade and navigation and he welcomes Vittorio's thinking on the need to educate the Indians so that in his words they should be fitted to enjoy the rights of all human beings as well as subjected to their duties so as Anthony and he has pointed out this invocation of Vitoria by Scott plays a central role in legitimating the creation of a new form of international law for a new American Century as Agee has argued the structure of ideas that shapes these lectures published by Carnegie offers a prelude to the Grand redeeming project of bestowing sovereignty through decolonization that the US would take upon itself in the 20th century by opening his reading of Vitoria with a reference to the conclusion of Victoria's relatio knees in the Carnegie classics of international law series Anu demonstrates that we should understand Vittorio's relevance by placing him in a new series or to use the language of the Skinner school in a new context and the context in which we should place him is this new American Century that places commerce at the center of international law that's concerned with the relation between the protection of property and the resort to war and that's concerned with the liberation the transformation and the humanitarian interventions in the decolonized world so I'd like to conclude that introduction to the reception of Vitoria by recounting an anecdote which involves the painting of a series of murals to decorate the newly built Department of Justice in Washington in 1935 so in the mid-1920s the US government began construction of a series of federal Billick buildings in the middle of Washington one of which was the new headquarters indeed the first building to house the Attorney General and the Department of Justice and when the new headquarters was completed in 1935 it was decided to adorn the ceremonial entrance with a series of mural panels depicting the Great Lord givers of history so it moved from early Egyptian kings through the figures of successive EPM epochs to the present age but the artist who was painting the mural was unable to locate a likeness from which to paint the features of Vitoria so there were no cameras recording Vittorio's lectures mallalieu's margot risperdal actually looked that up on youtube so instead hearing of dr. Scott's work the artist sought scott's advice on how where he might find a portrait of Victoria unfortunately Scott had to tell him that there was no portrait of Vitoria in existence so in a lengthy tribute to Scott published in the American Journal of international law after his death in 1943 a colleague recounts how this then worked out so the artist returned to his mural and painted the figure of Victoria garbed true to life as a Dominican friar but with an excellent likeness of the head and hands of James Brown Scott so they're in the halls of justice at Washington standing among the great lawgivers of the world opposite Hugo gracious is a good picture of dr. James Brown Scott disguised in the clothes of Dominican theologian expanding the law of nations 100 years before at grossest now that image of the likeness of Scott in the guise of Vitoria adorning the entrance of the US Department of Justice this is a very eloquent one and in the remainder of my talk I want to suggest two things I think it tells us about the character of modern law first the composite Vittorio's got figure suggests a relationship between international law and the past that is counter to the sense that the past and the present are clearly demarcated second the place of de Vitoria Scot figure in the mural at the entrance of the Department of Justice also illustrates the anachronistic nature of modern law and more generally so I'd like to say something first about what it says about international law in the imperial past and second something of what it says about an Akron ISM and law so first the relation between international law in Empire as I commented in opening there is a renewed interest today both within and outside the Academy in the question of whether and how the imperial past is relevant to the lauren politics of the present and in the field of international law I think this return to Empire is one expression of a dissatisfaction with the idea that de colon on decolonization successfully and somehow completely took place in the 1950s and 60s that international law and institutions are essentially today free of any colonial structures or concepts and that the political question now is how to mobilize what has become a truly universal law so many critical international legal scholars a number of a number of them associated with the third world approaches to international law or trail movement that Allen brought to Paris a number of years ago have argued against this forgetting of the past of international law so this group of scholars have asserted for argued that imperialism must still be thought of as part of international law the question is how we understand that ongoing relationship and the stakes of that debate it seems to me are quite high because much of the authority of modern international law rests on its claim to have transcended its European heritage and to operate today as a universal law that can represent humanity and we only have to look at the documents of the rio +20 20 conference the millennia Millennium Declaration many iconic recent statements which have this appeal to some sense of a universal humanity at their heart so the suggestion that international law may operate in a differentiated fashion then is an important challenge to that claim so that's one of the stakes of this debate in addition the idea that the history of imperialism is of no relevance to the contemporary global order plays a part in justifying the status quo so if one argues that current extremes have uneven development or the mass movement of peoples or food insecurity or poverty are the consequence essentially of policies adopted in the decolonized world over the past thirty years rather than some longer history then our sense of responsibility for those problems of course shifts so the stakes here then involve analyzing a possible continuity between an imperial past and a multinational present versus searching for more expansive legal basis to educate or improve the peoples of the decolonized world now that idea that the past has no bearing on the present is I think deeply ingrained in Western thinking so this is the sense of time that I'm talking about a sense of time in which we in the press and have the capacity and indeed the responsibility to create societies or laws or institutions that are free from the constraints of the past so unlike our medieval ancestors do I feel I'm living amongst Unruh tuna for we're not hampered by the illusion that destiny limits our freedom to bring new worlds into being so the legislators and the modernizers of the present are not bound by ancestral traditions or archaic obligations we might choose to be bound by ancestral traditions but that's our choice we're free in time to make that decision so as Constantin Faysal puts this the occupants of the modern world could not imagine life if our present were cluttered by the laws of ancient Rome the science of Aristotle and the morals of st. Augustine we moderns are free to change the present into the form we desire for the future the future we want so just as modernizers believed that the past has no claim upon the present so to many historians as I've said argue that the present should have no claims upon the past and I've pointed to the contextual school of the Cambridge historians for a really strong example of this tendency in much contemporary Anglophone history of political thought so on the one hand while the turn to history and international legal scholarship has been celebrated to a degree on the other hand historians have quite sternly cautioned international lawyers against adopting this anachronistic approach to history and they argue that the history of international law has suffered from the pragmatic interest that we international lawyers take when we look at history so according to around Alessa fir an international legal historian the aim of the work of much international lawyers is not to understand what happened in the past but to give current ideas or practices roots in the past and this kind of historiography says Lucifer sins against the most basic rules of historical methodology and their results are deplorable I'm still quoting this genealogic history from present to past leads to anachronistic interpretations of historical phenomena clouds historical realities that bear no fruit in note in our own times and gives no information about the historical context of the phenomena one claims to recognize so that approach to history of course hasn't gone unchallenged the approach to interpreting past events or texts only in the context of their time has been challenged both from within the world of practicing historians felt would be one example and from more philosophically oriented scholarship Michel Foucault would be an example there so to take one example from the world of practicing historians Frances Oakley has questioned the idea that the context shaping linguistic conventions can be confined to one that's contemporaneous with the lifetime of the author under scrutiny so in a book beautifully entitled politics and eternity Oakley says scholars being people of the book may have often more in common both intellectually and in terms of linguistic conventions followed with writers of the past than with many of their contemporaries and oakley says it's essential to recognize the degree to which the authors whose texts are to be interpreted often inhabit a world peopled through books with the dead to take an example of the philosophical challenge to the clear demarcation between past and present in the work of Foucault fucose claimed to be writing a history of the present famously was I think a full-scale assault on their side that history could or indeed should be written from a point of view other than the present so international lawyers extremely adept at thinking critically about the claim that we modern sovereign peoples are free in space so we're very good at making the argument that states can't be free from external obligations but we're less ready with critical responses to the claim that we have sovereign freedom in time we're much more likely to accept this idea that we're free from the past and it's here I think that we can see the significance of scholarship that rejects the view in the words of Annie that colonialism was an unfortunate but perhaps necessary historical episode whose effects have now largely been reversed instead critical scholars have argued that imperialism has structured international law in quite foundational ways and that justice can only be achieved in the present by continuing to endow interrogate the ways in which that past continues to bear on legal questions of our time the image of the composite Victoria Scott figure also provides a useful illustration of the challenge that law poses to chronological thinking more generally so many historians have responded critically to the work done by international legal scholars revisiting the importance of figures such as Victoria or battle or Brosius so historians have dismissed recent readings by international lawyers for assuming I'm quoting a false continuity and connectedness between Victoria and the contemporary discipline of international law or for taking again I'm quoting daring jumps that destroy the complexity and pluralism of the discourses from divergent centuries and as I mentioned in opening in Asus a sustained series of critical responses to Annie and other scholars of international law in Hunter has argued that Annie tries and fails to establish that extra European colonialism provided the unifying ideological essence during the Classical Age of empire so for Hunter the argument that that natural law and use gentium played this kind of role is itself an anachronistic one it's imposing a false vision of the unity of natural law back into earlier centuries but if we look to the context in which Victoria was reclaimed from modern American international law we can see that Annie hasn't invented a project of modern internationalism that he's then anachronistic aliy projecting back onto Vittoria rather early modernist gentium has been systematically and carefully reconstructed in the u.s. at the dawn of the 20th century to make sense of practices and institutions that were already reshaping the world so Annie was not in other words trying and failing to create a connection between Victoria and 17th century colonialism but rather he was creating a new context within which to understand the relevance of Vitoria today and that context is the one in which Scot recovered vitória a context of free trade of liberalized economies of informal Empire and of Philip benevolent humanitarianism so victorious theses do bear an ambiguous relationship to classical European colonialism but so does the 20th century form of multilateralism and private ordering and indeed that's the point Vittorio's humanitarian critique of Spanish Peyer was invoked by ideological innovators to use a cambridge school term such as james brown scott to provide a language for rationalizing there's new forms of international action so of course the political theorist richard tuck in his book the rights of war and peace is right to say that the first generation of legal scholars who systematically looked at the early modern jurisprudence of war that is scott and his colleagues left us with a misleading picture so tuck says scott and his colleagues approached victoria and gently and vidal as if they were trying and failing to clarify some inchoate principles of international law and as if they had a common aim and tuck says many historians of a discipline make this mistake and assume that their discipline was somehow waiting to be uncovered back in the Middle Ages and that those early early figures just got this wrong so tucks not wrong to make that argument but rather the point I'm trying to make is that the as the heirs of both Victoria and Scott we we can't ignore the fact that Scott and his generation did successfully weave Victoria and Gentilly and grocers and Vidal into a universal history with the cosmopolitan purpose so in so doing they and their colleagues and fellow travelers have remade the world in their image and unless we remember that history of the 20th century we can't understand the claims made by international legal doctrines and declarations today with their vision of a common humanity inspired by timeless and universal principles and committed to establishing a just and lasting peace all over the world I'm quoting they're not Vittoria not Scott but the Millennium Declaration yet unless we remember the histories of earlier centuries we can't understand the potential dangers inherent in such visions either so we need to remember both histories the history of the 20th century that got it so wrong and the history of the earliest centuries in which these ideas were first developed so attention to the ways in which law as ideological innovation involves the movement of concepts across time and place thus poses a broader challenge to the idea of the past as history according to facile the invention of history amounted to a declaration of independence from the authority of ancient texts early modern political thinkers sought to distinguish between Laurin history between real modern law and false medieval law between real lawyers and historians of law and I gather that in France you put those people in different departments so well in Australia we would have them together still in a law school so real law was defined by presence and history on the other hand belongs in the past but where the boundary between history and law ought to be drawn is fundamentally disputed for lawyers I think the past can't be forgotten Laura's a sight not only for the creation of new obligations but also for the transmission of inherited obligations laura is inherently genealogical depending as it does upon the movement of concepts languages and norms across space and even time so the past far from being gone is constantly being retrieved as a source or rationalization of present obligation so while some legal historians identify as historians and preach against the sin of anachronism in a sense lawyers are and must be sinners in that sense law necessarily has to reckon with obligations that are not derived solely from the car rulers of a state and in that sense whatever the felt urgency of breaking with the past the past persists in custom in precedent and in legal tradition so to conclude in their book Anna chronic Renaissance Christopher wood and Alexander Nagel sought to contest the chronological base of the discipline of art history and it's a version to anachronism for wood and Nagel art was the name given during the Renaissance to something that could hold together two ideas about time on the one hand the work of art was a material object an object with a history that had been created by identifiable human agents but on the other hand the work of art was a relic in the religious sense a magical conduit to other times and places so art had the ability both to gesture towards the historical world in which it had been created and also suggests to beyond that world to symbolise realities unknown to its makers and it was in the latter sense that Renaissance art was Anna chronic other to the notion of chronological time flowing steadily from before to after that was then gaining the upper hand and that was as I have suggested necessary to the emergence of the modern state so for wood and Nagle art is the name of the possibility of the conversation across time and I would suggest that law is another name for that possibility law like art holds together two ideas about time in the modern state the authority of law like art derives from its relation to human acts of creation to human identifiable sources we look for human sources of law and we're no longer impressed by the claim that law is something that can be assembled but from canon law natural law custom tradition or moral standards by a group of erudite men so in that sense we're all contextual now yet law like heart loses its aura if it's completely reduced to human proportions so we create buildings departments of justice artifacts murals and even texts to embody institutions and the power of create such creations requires that they resist anchoring in time so to return to the words of James Brown Scott it's especially important at this juncture that the general public should know that international law is not a thing of convention and of compromise to be found in treatises of recent date but that it is the slow and painful outgrowth of centuries so it's fitting then that the entrance of the US Department of Justice displays a likeness of Scott in the guise of Vitoria because it's the version of Vitoria created by Scott that would provide the origin and thus the ideological justification for the universal law of the American Century the vitória who was reclaimed for 20th century international law arrived between the covers of a book emblazoned with the name of one of the richest industrialists of the 19th century in a series edited by one of the most influential American international lawyers and moralists of the early 20th Scott introduced his fellow Americans to vitória as the father of a new kind of international law for a new kind of world order and it's this world order that scholars of international law and Empire have sought to understand and to critique Thanks before the lecture on which other precise me about this and I quote Islam and this ID to know whether due to aniconism we don't understand what happened in the fast sorrel then in discussion beforehand it's always nice to prefigure your question your first question raised the point that this is very much like a discussion also that goes on within comparative law the idea that we can't understand the law of another place we can't understand the law of another time and then the the pessimistic view being well then we should stop trying because we don't know whether we understand and so Allen's view is well we also don't know whether we misunderstand maybe we've got it right so let's be optimistic and keep and keep going so my interest here is is not to say I think that the contextual aschool have led us astray so it's hugely interesting to try and attend carefully to how a scholar or an author was trying to intervene in debates whether those debates were ones they were having in their head with dead people or ones they were having with people in the room and what they were trying to you to make their texts do lawyers I think are very good at thinking like that because we think of language as something very active so my sense is precisely that I don't want to give up on the on the very strong attempt to engage properly with this kind of contextual Asst method on the other hand I would really want to activate the sense of context and to say as I've tried to say in the talk that I think as lawyers the context is really something that's very much opened to be questioned and particularly as international lawyers so the the context of a discussion about particular topic may be a legal case that's arising in Australia but that will necessarily be in conversation with discussions that are happening in other countries with ideas that have been drawn in from history as lawyers that's what we're trying to activate is that sense of context so this is why I'm stressing to ideas of time that law both is attentive to this question of human creation but also looking for the ways in which these ideas gesture out to something beyond that moment of creation that's an interesting question we use ideas about history and responsibility I think all the time in international law we use ideas about what period of time is relevant to thinking about a particular situation a particular legal question we do that as a matter of course so in some ways thinking about time like this wouldn't be news to practicing lawyers I think that's something that lawyers as I've tried to draw out I think that is something that's already part of legal method so really in a sense what I'm trying to do here is engage a debate an interdisciplinary debate about this history and its implications for contemporary law so I'm trying to say that historians have a responsibility for how we think how they think about law just as lawyers have a responsibility for how we think about history but I would say that how we think about the relation of questions of responsibility and justice to history is enormous ly important in all fields of law so how we understand responsibility for a particular situation of civil war how we understand responsibility for human rights violations how we understand responsibility for climate change even how we understand the structures of international trade and whether or not we should worry that they reproduce structures we see in earlier centuries all those questions necessarily involve thinking about responsibility across time as well as responsibilities in the present there's also someone at that back it's a really interesting question and one that I think about often so it's very interesting to wonder where the concepts bring with them other kinds of historical baggage so I've been doing work recently on responsibility to protect concept and one of the things that's very interesting about that concept is how it radicalized those notions of authority how it brings a way of jurisprudence of war into the civil context and how we can see it doing that from already the 17th century so then is it that the concept somehow imports with it a set of ways of thinking that shape how we understand situations or is it far less determined than that you know in some ways I think there's elements of both of those things going on I think concepts do bring with them in some ways structures of thinking but of course they that remains very open and and where a concept will lead us is always still a political question is still a very active question you can see I haven't totally bought out of the idea that we're free to choose our destiny thank you for the presentation and I would like to ask two questions and my background so first of all the relation between the question and respect implemented by the move simply as well first we need a reason envelope so how do you see the application of the implementation of international norms - I think the value of the International and health supply in the most has different perspective than what we applied a thousand people to not support addresses and cases this table shows how the treatment for relatively low technical things which is many thanks a lot of issues raised in your question so maybe I'll just take a couple of points for now and perhaps we could talk more later so one reaction I would have is partly that I wouldn't want to make a strong statement about the North versus the South in terms of responses to international law it seems to me that that's perhaps a bit too cut and dry to think just in terms of north-south and some kind of clear division for instance we would be there have been periods in recent years where there's been a great deal of concern in the north about whether the US for instance was interested in complying with international law with other states with in the north taking different positions and we would see similar of course differences with it between states in the I would say that there's a very interesting period that I think would it would deserve some more attention and that is the period immediately after decolonization in the 60s in in the early 70s where we can see a debate that that that I think could do with some revival really about what decolonization meant for international law so an extremely good faith debate coming out of the third world I'm thinking about our piano and scholars like that in India I'm thinking about judgments of the ICJ but I'm also thinking about the involvement of lawyers from the US and from Europe in discussions about what decolonization how radical decolonization was and what it meant what it could mean what it had to mean in international law for it to have any significance and I was recently reading around the Vietnam War for an article that's about to come out in a special issue of the European Journal of international law that's devoted to microvolts is just and unjust wars and i was interested because revolts uh says there he's against international law and international lawyers are living in a paper world and he's against legalism and he's for more moral approaches to international questions so I thought what boy international lawyer is saying at the time that would have votes are reacting like this well actually international lawyers weren't doing anything of the sort what's very interesting in the a page at pages of the American Journal in the 60s and 70s is a and of the British here broken and various other major Anglophone journals at the time is this real attempt to think about what international law what was required of it in terms of renovation to come to terms with decolonization that seems to me a debate that's really passed perhaps partly because of disenchantment with the international of justice and disenchantment with the turning away from the General Assembly but I think there's nothing like that debate really in the mainstream of those journals anymore so I would say I don't see a strong distinction and approaches to international law but something of the good faith kept the naivety of that early discussion seems to me to have left after but so is structuring the way a certain interest is retained by the dominant powers in place and one carrier is that see together Scotia these days is sovereignty and how sovereignty is a thing of the past and or damage from controversy forested all the scholars are pushing international law in this direction and of this session and we see that right to protect country's emergency do you feel like this international law system that no has been invested in for so long is it going in the direction that at some point states will react negatively to and try to pay for the destruction of the system what we see will be basically system that will be applied to try to say thank you raman who may have missed the lecture but has been attending my classes so so well I'll take the point is coming out of that broader discussion in any case so I mean that's again it's such a huge question and can I predict whether the system will well disintegrate but let's maybe if I just stay with the question of sovereignty and its position in the system I think that I would absolutely agree that we've seen over the past decades fairly systematic turn away from an interest in questions of of the subject of international laws status and questions of sovereignty towards much more functionalist accounts of international law so their responsibility to protect concept is in some ways a reaction to that or in some ways you know the end point of that in that we've seen the argument made by the International Commission on intervention and state sovereignty that put forward the responsibility to protect idea that sovereignty is a set of functions that can be disaggregated a bit like apartments in an in an enterprise in a corporation so if somebody isn't performing their function well you can just allocate that function to someone else and behind that idea it's always that there's some manager who can decide who could best exercise a function so if the state can't exercise its responsibility to protect then that function should just be allocated to someone to do as if this was just a question of administration that didn't involve politics I think what's quite interesting with the responsibility to protect concept is politics comes back in the question of who decides who decides what protection means and who can who can offer it in the case of international economic law which is what I'm talking about in in the classes here we've been looking at food sovereignty questions of intellectual property questions of land acquisition and biofuels and again I think it's very interesting that what seemed to have been sorted out as as a kind of technical issue has now found has now led to a Doha round of negotiations that are completely stalled over attempts by partly developing countries to reassert questions of sovereignty countries reasserting questions of sovereignty and failing before the WTO appellate body itself for instance in in China's case attempting to reassert the doctrine of permanent sovereignty over natural resources and failing but nonetheless in negotiations we're seeing these ideas still very much being held on to so I don't think sovereignty is disappearing but I think it's true that there's been a period in international law where it's been seen and I'm quoting as anachronistic I was wondering whether in your research on this topic with everyone waiting us evening parallels for example in domestic situations in international law with idea that constitutional law whose meaning contextualism and contextualized approach of affirmative action in the United States and into other and there were a lot of Florida stories from different fields and absolutely including some come from the US and then the debate of course is a really lively one exactly about this question interpret legal concepts and indeed can legal concepts move across time aspects including their scholars who do important work on habeas corpus for instances and the history of that concept so I think that there are very live debates in terms of president's constitutional poll around this question in Australia and I'm sure in any system that's dealing with the legacies of colonialism we also see enormous we needed to beit's around questions of law in history so whether and how the history of colonialism should shape approaches and directions but either the High Court or the legislature take is a huge lead contestant question so obviously Empire is going to be one of those fault lines that bring this question which has the quality should we take this in town this difference between facts and great so on the first point absolutely right that both the Taureans got within a natural law tradition and that we should take that into account when we're thinking about that example and indeed I think it's very interesting to think about the place of natural law in very dogmatic or very positivist traditions yours and mine because of the role that a much more contextual us approach in a sense place to justifying the law in those kinds of systems but then you say isn't law anachronistic if we believe it to be so and I suppose the point I'm making there is that to a sense in a sense international law retains that foundation in natural law so we believe it to be that's the point I'm trying to make and then what flows from that well good things and bad things but I think that that that theological tradition is really at the heart at the heart of this way of thinking about law and that's part of its appeal from here but also part of what makes it quiet can make it quite dangerous perhaps that's why I'm holding on to both of those ideas in terms of sociological facts and indeed juridical facts then I would be wanting to ask a lot more question so this is really a starting point for a set of questions about yes what do we see persisting as legal structures from the imperial past and what do we see as moving now you're looking at the question of formal equality and of course that's one we could focus upon and that's one that we would say has changed largely but we might want to look at other ways in which law helped to structure or enable imperialism and we might find that some of those persists so the question is indeed an empirical one I wouldn't answer it as quickly as by saying formal equality resolves the question but I would agree with you that it's a question an empirical question Metro I hope you share my enthusiasm it will be put on the internet something left for and people interested in moving on to debate with you or and we wanted to do still
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Channel: ESIL Lecture Series and Events
Views: 12,997
Rating: 4.9629631 out of 5
Keywords: international law, empire, legal theory, legal history, orford, sorbonne, ESIL
Id: b5UzlTLEMko
Channel Id: undefined
Length: 69min 46sec (4186 seconds)
Published: Mon Mar 18 2013
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