Last week, I enjoyed that unique privilege at Temple Law School, where Professor Jeff Dunoff, a stellar scholar and generous friend, organized a two-day Workshop entitled, Engaging the Writings of Martti Koskeniemmi. The program reflected the breadth of Koskenniemi's intellectual prowess and was divided into six panels: Using International Law in Times of Crisis; On Formalism in International Law: Reconsidering Fragmentation in International Law; Writing International Law: Questions of Cross- And Inter-Disciplnarity; Reflections on the Theory and Practice of International Law; and International Law, History, And Progress. Workshop participants drafted papers that challenged, built and reflected upon Koskenniemi's work. They delivered them in private to a company of their peers all the while striving to avoid speaking directly to Koskenniemmi who sat, without fanfare, on one of the edges of the square-shaped seating arrangement. Koskenniemi did participate in the discussions that followed the presentations and provided new insight into his ever-evolving thinking and approaches underpinning the dynamism of legal thought generally.
The highlight for me, and perhaps for the rest of the participants, was his opening keynote address, wherein he discussed his ongoing seven-year book project on the history of legal thought. The lecture, Histories of International Law - Significance and Problems for a Critical View, lasted for what felt like only minutes and left me convinced that I should not write another word until I spent the next five years immersed in a disciplined reading practice. Below I include my notes from his momentous lecture.
He begins by insisting that the history of legal thought reflects a teleological tradition. That teleology was first captured in religion and then by Hugo Grotius in international law, later by Immanual Kant as a set of principles and theories extrapolated from international law, and today in the form of the UN Security Council and other institutions that embody international law. In contrast, the Realist Tradition, using William Grave as a reference, contends that international law emanates from an imperial center to an imperial periphery. At the heart of that imperial activity is war and diplomacy. Legal history is therefore a history of empire. Taken simply, however, this would discount the fact that the center of empire is divided against itself as history demonstrates that the imperial periphery has used empire's law to challenge its core. To assume that international law's history is one of imperial domination and control is as reductionist as assuming that its history is an idealistic one about the pursuit of freedom, dignity, and justice.
Koskenniemi then moves on to highlight the Eurocentrism of international law which complicates this sordid history. He explains that one cannot imagine international law without a European imaginary- this includes the Renaissance, Jus Gentium, the earliest concept of sovereignty, and the seeds of international law found in Roman courts and the works of Cicero. Lawyers on the imperial periphery, however, like T.O. Elias of Nigeria and R.P. Anand of India, are also part of international law's development and history. Koskenniemi explains, however, that insofar as they shaped the substance of international law, they did so within its confines thereby asserting that "we are also European." Another approach is to tell the stories of colonial barbarism that spurred an anti-colonial consciousness. Yet another approach is a hybrid one that includes both the imperial center and the periphery's pushback that created a dialectic of international law.
As a historian of legal thought these approaches present problems because today we view international law as the body that exists in front of us. However, this approach or Presentism, risks skewing history. Koskenniemi continues that it projects our conceptions or present-day readings onto people who were free from those ideas and readings all together. Worse, it influences legal thinkers to willfully ignore what these historical figures were trying to say at the time they were saying it. Hugo Grotius is a great example in this regard- he served as a legal adviser to the Dutch East Indies Company and he considers his greatest contribution to be the unification of churches and yet, international lawyers, in particular, regard him as the forefather of international law. Despite the risks posed by such historical readings, we continue to place all sorts of diverse writers into a single tradition that we can then step into ourselves.
So where does that leave historians who want to write about the history of international law? Koskenniemi suggests that writers should be concerned with scope and scale. This involves choosing where to begin and what scope of it to examine. In his own forthcoming book on the history of legal thought, Koskenniemi will begin with a discussion of St. Augustine and an examination of international trade. While sovereignty and trade are two aspects of the history of international law, there has been an undue attention given to soveriegnty. However, he explains, "I look at the Netherlands in the sixteenth century and I see a company," sovereignty is indeed relevant but only later in the game.
Additionally, a constant challenge will be how to accurately describe historical figures of legal thought. Take Vittoria for example: was he a counter-reformationist or was he a teacher? Tony Anghie has been accused of presentism in his writings on Vittoria for imposing a particular context upon him. However, Koskenniemi counters that there is no absolutely right context- the content of our writings reflects what is most relevant to our own chosen scope and scale. It is similar to looking at this perennial image that challenges the objectivity of our perspective:
Koskenniemi continues that as legal historians, we are writing a history of the present; the writing practice itself reflects a desire to intervene in the present. Despite his desire to make such an intervention, Koskenniemi then ends on an anti-climactic note and explains, "The world is a disaster and I have nothing to offer to help you figure it out. My work is that of a detective...to say who dunnit?" Perhaps he is right, but it is doubtful that future generations of international lawyers, historians, and writers will look so plainly upon Koskenniemi's work. Surely, their own presentism will shape him into something more than a detective and, instead, as a culprit of spurring radical approaches to the study and practice of international law.