Borderline History at Borderline Jurisprudence: Some Thoughts on Anne Orford’s International Law & the Politics of History (Part I)

I am a big fan of Başak Etkin and Kostia Gorobets’ Borderline Jurisprudence podcast. I am also very interested in the intersection between law and history. Since Borderline Jurisprudence’s latest episode featured a discussion with Anne Orford on her latest book, International Law & the Politics of History(hereinafter ILPH), I could not resist to offer some comments.

Anne Orford is, without a doubt, one of the field’s Greats and her latest book is the culmination of years of research and numerous papers and book chapters setting out perhaps the most innovative and thought-provoking proposal for a tectonic shift in the way international law thinks about itself in recent memory. Throughout her work, and in ILPH, Orford warns of a methodological incompatibility she has discovered between international lawyers and historians. The latter, she says, think they can correct the former’s “amateurish”, “anachronistic” and/or “presentist” attempts at “manipulating” history for political reasons (i.e. looking at international law’s past to find support for an anticolonial and TWAIL re-reading of modern international law) through the use of “proper” historical methodology that produces objective, neutral, knowledge of past events. This methodology, known as contextualism, is described by Orford as an “empiricist dogma” (ILPH, 82) that mandates all historical events must be understood within a “single, defined context” that gives it its meaning “once and for all” and that “should not be contaminated by other contexts, and particularly by the present context” (ILPH, 82). Since the doctrine of precedent makes the law “necessarily anachronistic”, lawyers rarely follow this method. For lawyers, Orford says, “the proper context for understanding the legal meaning of a statement or text is not given, and certainly not determined by chronology”.

One of Orford’s central points is that international law is “made, not found” (ILPH, 252) and it therefore cannot be objectively discovered by categorically establishing what was “thinkable” in a given time/context (ILPH, 140). Whenever historians claim to have discovered the “objective truth” about international law, they are, in fact, participating of a larger process to “make” international law into what it is today. As she tells Başak and Kostia, “the more impartial a historian appears, the more partial [their research] becomes because they become part of the struggle for what international law is”. Orford’s is thus a call for intellectual honesty: “it’s okay to be partial as long as we don’t think we are impartial”, she concludes.

Orford sees in history a very arrogant discipline – one that is absolutely sure about the value of its own epistemology and its ability to produce “objective” accounts of the past. And yet, if one looks at the state of current historiography (that is, the “history of how historians write about history”), this is definitely not the picture that emerges. Instead, the history of historical methodology is one of wavering empiricist conviction, from the 19^th century views of Leopold von Ranke, who famously said historians should report history wie es eigentlich gewesen, “as things essentially happened”, to E.H. Carr’s 1961 conclusion that historical facts “are always refracted through the mind of the recorder”.

In fact, one could argue, contextualism itself is the product of these anxieties. After all, it was Quentin Skinner himself – one of the most influential contextualists – who wrote in 2002 that “[s]carcely anyone nowadays believes in the possibility of building up structures of factual knowledge on foundations purporting to be wholly independent of our judgment”. Indeed, the collapse of Rankean empiricism and the dawning realization that an ‘ultimate history’ will never be achieved (Carr, 123) meant that 20^th century historians had to grapple with the horrific prospect that there really was no objective history to report and it was all the invention of modern minds looking at the past. In Skinner’s words (p. 59):

“The perpetual danger, in our attempts to enlarge our historical understanding, is thus that our expectations about what someone must be saying or doing will themselves determine that we understand the agent to be doing something which they would not – or even could not – have accepted as an account of what they were doing”.

Rather than an argument from epistemic arrogance, contextualism is an argument from epistemic anxiety: how to produce the most accurate account of the past when the very act of looking into the past alters the result. And just like – to quote Kostia – lawyers turned to history as a cure for their own “genealogical anxiety”, contextualist historians turned to linguistics to solve their own.

This “Linguistic Turn” is what led Skinner and his supporters to believe that historical texts should be understood in context – but not context as the sociopolitical surroundings of a person, but context as a term of art – a linguistic context, or, to quote Annabel Brett, “what other people were saying at the time and the conventions governing that saying”.

To understand the concept of context, therefore, we must dive a little deeper into the fundamental assumptions of Turn-to-Linguistics historians, like Skinner. They, in general, subscribe to the theory of “illocutionary intent” – the idea that there is some additional knowledge to be learned from a text that lies beyond the mere words of a text. Words might tell you what the author meant to do by writing the way she did, but not what she meant to do in writing what she wrote. So, for instance, by writing a certain way, a poem may cause a specific emotion on the reader – sadness, excitement, happiness. This “perlocutionary” intent can be extracted from the text alone. But there is one added level of meaning that requires extra-textual investigation: what the author expected to achieve with the specific utterance – what she was doing in writing the way she did.

This latter concept is the author’s illocutionary intent, and it is this meaningthat contextualists seek to recover through contextualisation. Was the author issuing a warning? Rebutting a claim? Protesting a law? These “linguistic actions” matter for our understanding of the source material, they would say, as they keep our own expectations about the author at bay. Thus, when looking to contextualise, one must, as Skinner said, “delineate the whole range of communications which could have been conventionally performed on the given occasion by the utterance of the given utterance, and, next, (…) trace the relations between the given utterance and this wider linguistic context as a means of decoding the actual intention of the given writer” (underline added).

These relations and communications, though, are not interpreted freely. This being a “linguistic” turn, they must be understood within the specific rules of the language employed. Language, again, understood as a term of art, not like English, Spanish or French, but rather, the “different ways of talking or modes of discourse, what we might call idioms or rhetorics, within natural languages” (Brett, 118). These idioms are therefore not “discovered” but “reconstructed” in the past out of “groups of texts which all rely on the same standardized formulae and commonplaces; which share the same grammar, vocabulary and rhetoric”, so that we can identify the “language of natural rights” or the “language of Aristotelian science” and, eventually, of course, the “language of the ius gentium” and the “language of international law” (Brett, 118).

Thus, when contextualists speak of, say, Vitoria’s context, they do not generally mean the political and social reality of Spain in the 1500s, nor do they mean that he cannot be seen through any other prism but 1500s morals. Rather, they mean that his texts were written with a specific illocutionary intent and within a specific language that should be respected if we are to truly understand what he was doing.  

Let’s look at a practical example to help us grasp the concept. In one of his essays, Skinner wonders why Descartes wrote about the concept of indubitable knowledge in his 1641 Meditations. One way of looking at this, Skinner posits, is to say that Descartes, as an epistemologist, would have been naturally attracted to “one of the central problems of epistemology” (Skinner, 83). “Of course one of the greatest philosophers in history would have tackled one of the greatest problems of his discipline!”, the non-contextualist would think. And this would lead them to believe that Descartes’ approach to indubitable knowledge is pure, abstract and neutral.

Instead, more recent scholarship has unearthed evidence that Descartes’ Meditations was written as a response to the “recovery and propagation of the ancient Pyrrhonian texts in the later sixteenth century” (Skinner, 83). Descartes was therefore not speaking in a vacuum or as a “Great Mind”. He was counter-arguing the ideas of 4^th century BCE Greek sceptics who, despite never having even a concept of 1641 France, are still part of Descartes “linguistic context”. To understand Meditations, one needs to understand the Pyrrhonians and the way Descartes approached them. Otherwise, we risk contaminating his views on indubitable knowledge with what we expect Descartes to have said about indubitable knowledge, based on our knowledge of Descartes’ future.   

It is this practical concept of anachronism and presentism that contextualists reject, and there is nothing inherently anti-legal in its avoidance. The difference lies, Craven would say, on whether one is writing a history of international law or using history in international law. Take the example of Peter von Hagenbach – a 15^th century Bailiff from Upper Alsace who, in 1474, was tried by a tribunal composed of judges from 28 different city states for crimes committed during his service under the Duke of Burgundy. Legally, it may be convenient to take the von Hagenbach trial as a precedent and claim that historically “international tribunals” trying public officials for “war crimes” is not a rare occurrence, since it is a practice that can be traced back more than 500 years (this is, in fact, what the Nuremberg Tribunal did!). Historically, however, it would be grave malpractice to arrive at the conclusion that the von Hagenbach trial was a “war crimes” trial before an “international tribunal”. These 21^st century concepts were simply not part of the trial’s applicable linguistic context and language.

When seen in context, therefore, the contextualist plea for contextualisation in history does not seem so unreasonable. In fact, I would argue, it is a good practice that Orford herself follows in ILPH. Chapter 4 of ILPH includes an incredibly detailed take down of some of the most representative contextualist scholars, such as Herbert Butterfield, JGA Pocock, and Quentin Skinner.

Butterfield, Orford tells us, felt it was very important that a historian does not become an “avenger” who “judges the parties and rivalries of past generations” (ILPH, 122). Instead, Butterfield says, historians should “describe” and “stand impartial” because “all our judgments are merely relative to time and circumstance” and historians should “not be moved to indignation by something in the past” (ILPH, 122).

Orford does an excellent job in asking us to ponder where these ideas came from. Orford notes Butterfield’s Nazi sympathies and his conservative Christian ideology, concluding that his work should be read as “part of a conservative theological milieu that rejected liberal narratives of progress and rationalistic hubris and sought to return theology to the frontlines of intellectual life” (ILPH, 122-123). In Orford’s own words, “[p]aying attention to his conservative Christian world view helps to remind us of why he believed [anachronism, presentism, Whig histories, and progress narratives] were wrong and dangerous” (ILPH, 125). Orford, of course, is absolutely right. And yet, this is exactly the point of contextualism – that looking into the utterances that informed an author’s work and understanding the reasons why they wrote in the way they wrote can tell us something about their work’s meaning. ILPH’s Chapter 4 is therefore, ironically, an exceptional contextualist critique of the founders of contextualism and how they have allegedly abandoned their original epistemic anxiety in favour of an excessive empiricist certainty. And this makes sense, because what Orford was doing through that critique was history, not law.

This is, in fact, an important part of the contextualist critique of Orford. Andrew Fitzmaurice, for instance, has explicitly said that “there is nothing wrong with being anachronistic in order to make a point of (…) law” or to use history in instrumental ways in order to identify international rules. But, Fitzmaurice continues, “[w]hen we put the past to such ends, we should not call it history if it ceases to represent some kind of account of the past which its inhabitants might recognize as a description of their own experience”.

In Part II of this post, I will explore this aspect of the contextualist critique in more detail.