Emerging Voices: A View from Early Modern Cultural Studies on Fragmentation and the Law of Nations

by Christopher Warren

[Christopher Warren is an Assistant Professor of English at Carnegie Mellon University]

Disciplinarily, as my title suggests, I come from elsewhere.  But having travelled here to the shores of international law from my home in early modern cultural studies, I come in part to praise the fragmented landscape.

“Fragmentation” in recent legal discussions usually refers to “traditional international law [being] pushed aside by a mosaic of particular rules and institutions, each following its embedded preferences.” “An everyday international occurrence such as the transport of hazardous chemicals at sea,” as Martti Koskenniemi explains, can now be “narrate[d] as part of a different set of human pursuits, values, and priorities,” including trade law, transport law, environmental law, law of the sea, or human rights.

Koskenniemi’s account of jurisdictional and normative fragmentation usefully captures two main insights, first, that narrative—story—plays a critical and maybe increasing role on what is notably called the “international stage”; and secondly, that the stories we tell and the ways that we tell them have legal, social, economic, and political consequences. Robert Cover’s foundational essay Nomos and Narrative” (pdf) powerfully articulates such insights as well.

Disciplinary Fragmentation

My first interest here, however, is not normative fragmentation but a different though related kind of fragmentation, namely disciplinary fragmentation, specifically the present disconnect between international law and humanistic disciplines like literature and history. Fortunately, disciplinary fragmentation has left rough, jagged edges, and while I’m visiting here I want to take the opportunity to celebrate the craggy coastlines where we can still find evidence of international law’s connections with the humanities.

The present distance between international law and literary and cultural studies might make my participation in this forum surprising, but it’s also, I’d suggest, a fruitful way to think historically and methodologically about international law.  Prior to the nineteenth-century, when international law came to be seen as a “science,” literature and history formed constitutive elements of the law of nations.

Westphalia-era figures like Gentili, Grotius, Suarez, and Hobbes thought theatrically, poetically, and philologically—as the title pages from Hobbes and Grotius illustrate:

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Sources: Virginia Tech Special Collections; Europeana.

The Humanities and International Law and in Early Modern Culture

Such aspects have proven surprisingly easy to overlook in an increasingly professionalized field. Yet consider a speech given in 1626 in the English House of Lords by Edward Sackville, Earl of Dorset, concerning the law of the sea and the definition of adjacent waters. Referring in the first instance to Hugo Grotius’ famous 1608 argument for the freedom of the seas, Mare LiberumDorset told the Lords,

though that Hollander [Grotius] wrote of Purpose to destroy all Dominion in the vast Ocean; yet he speaks nothing against the Dominion of our English Seas (however he hath been misapprehended); but expressly elsewhere says, that Meta Britannis Littora sunt aliis.  The utmost Limit of the Demesnes of the Crown of England are the Shores of the Neighbouring Countries; the whole Sea, or the Territorium Marinum, that intercedes, being Parcel of the Possession of the Crown.

There are many things to say here—about Dorset, about context, about England emerging as a sea-borne empire (a whale rather than an elephant, to use David Armitage’s useful schema). Yet key from the perspective of disciplinary fragmentation is the fact that Dorset’s “elsewhere” referred to a poem—one, actually, in vast corpus of roughly 25,000 lines of poetry written by Grotius over his lifetime.

Now, many scholars who turn regularly to Grotius’ Mare Liberum and De Jure Belli ac Pacis (or even The Grotian Moment blog) might be unaware that Grotius published a rich array of poetry—tragedies, encomia, epithalamia, translations, and compendia of varying kinds.  And this is precisely the point: our fragmented disciplines have given us a fragmented view of history, implausibly cutting wider cultural history from the history of international law.

It would be reductive, moreover, to dismiss Dorset’s speech or Grotius’ Inauguratione Jacobi Regis (1603), the panegyric to James I that Dorset cited, as “mere” rhetoric.  Literature and history were acknowledged ways to approach legal problems, to practice textual interpretation, to imagine other worlds, to hypothesize about causes and consequences, to contextualize language, to think analogically and counterfactually.

If the legal question at the heart of Grotius’ Mare Liberum, for instance, was whether the sea was sufficiently akin to land for it to be held as property, a poem like Margaret Cavendish’s “The Sea Similized to Meadows and Pastures: the Mariners, to Shepherds: the Mast, to a May-pole: the Fish, to Beasts” could press the analogy even more effectively, or at least from different angles, using sophisticated techniques like meter, enjambment, and allusion. Literature and history, as Eric Nelson has argued of Hobbes’ translations of Homer’s Odyssey and Iliad, functioned as ways to do legal and political theory “by other means.”

In Praise of International Law’s Craggy Disciplinary Coastlines

It’s widely believed that international law has since become far more scientific and technocratic—see for example the recent satire in The Onion here—but the textures of humanism haven’t entirely been smoothed out of the discipline. Just this spring, Benjamin Wittes at Lawfare saw a Robert Richmond-directed production of Shakespeare’s Henry V at the Folger Theatre in Washington, DC and found himself pondering “scenes…saturated with legalism in warfare, both jus ad bellum and jus in bello.”  NYU law professor and European Journal of International Law editor J.H.H. Wieler, himself a novelist, publishes original poems in each volume of EJIL.  China Miéville, author of world-renowned “weird fiction” novels such as The Scar (2003) and Embassytown(2012), doubles as a trenchant Marxist critic of international law (see, e.g., “Multilateralism as Terror: International Law, Haiti and Imperialism”) while Michael Byers’ penetrating analysis of North Pole sovereignty claims, Who Owns the Arctic?: Understanding Sovereignty Disputes in the North (2009), concludes with what amounts to a piece of fiction designed to illustrate international legal positions.  From the perspective of literary and cultural studies, Byers’ hypothetical scenario, in which a commercial ship under a flag of convenience barrels through Canadian Artic waters made newly navigable by climate change, testifies to the ineradicable role of imagination in international law, the persistent literary necessity of thinking as if.

If international law’s rough disciplinary frontiers seem marginal, inconvenient, or embarrassing from deep inside international law’s specialized domain, it’s nevertheless worth remembering that these are typically places outsiders encounter first.  As a humanist, I value beyond measure the places where history and culture jut out from the technocratic mainland, where an allusive title, an historical footnote, an ingenious reading of a children’s book, an etymological excursus, even a nod to a TV program like Battlestar Gallactica—however inadvertently—creates a handle or a harbor.  These help ensure that international law doesn’t seal its borders too tightly against curious intellectual travellers. In the seventeenth century, women like Margaret Cavendish published few if any legal treatises, but international law’s proximity to literature, history, and philosophy meant that few educated Europeans were wholly cut off from legal discourse.  Methods and vocabularies capable of reaching across disciplines today likewise acknowledge that international law affects far more people than can correctly sound its distinctive shibboleths.

Additionally, they quietly mark the ways that arts, history, and culture also legislate and adjudicate.  And it is on this point that I wish to conclude.

Towards a Literary History of International Law

Actors and events, as Koskenniemi recognizes in his discussion of legal fragmentation, may indeed be narrated in many different ways. In the end, this reminds us that “literature” is no more a single thing than “international law.”  Rather, literature too is a plural “mosaic” of dynamic generic traditions—epic, tragedy, romance, comedy, novel, and so forth, each with its own distinctive protocols issuing from different sets of values and priorities and interacting not only with each other and but with broader cultural phenomena in complex and surprising ways.

What the fundamental similarity between literature and international law in this respect ultimately suggests to me is the possibility that international law has an even deeper literary history than the one outlined above.  Although space prohibits further elaboration, those interested in the roots of normative and jurisdictional fragmentation in international law could do worse than to investigate literature’s plural generic histories.  A genre is nothing if doesn’t entail implicit rules for inclusion and exclusion, powerful normative suppositions about what matters in the world.   Indeed, this is something that scholars like Bradin Cormack, Timothy Hampton, Lorna Hutson, Lynn Hunt, Victoria Kahn, Brian Lockey, Susan Marks, Ed Morgan, David Quint, David Scott, Joseph Slaughter, Chenxi Tang, and I have already begun to argue.

I’d suggest that further attention to literary genres’ specific traditions, values, and priorities—their inclusions and exclusions, their normative worlds—may in fact allow us to see fragmentation in a new light.  Long before contemporary worries that each of international law’s distinctive subspecialties was categorizing and re-describing persons and events in competing ways, rendering some experience as salient and other as incidental, literary genres were doing much the same.

Ultimately, it may be most illuminating then to consider the distinctive ways different genres like epic, comedy, tragicomedy, and tragedy have tended to organize experience and the ways those tendencies map or don’t map onto recognizably modern legal categories like the laws of war, trade law, environmental law, and human rights.

Doing so may even reveal that international law’s presently fragmented landscape is home to even more meaningful stories.

http://opiniojuris.org/2013/07/08/emerging-voices-a-view-from-early-modern-cultural-studies-on-fragmentation-and-the-law-of-nations/

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