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

Part I set out the fundamentals of the debate, explaining that a key part of the contextualist critique of Orford’s view of legal history centres on the difference between doing history of international law and using history in international law. This is where the two sides get stuck, because Orford presents the TWAIL critique as “correctives to problems with earlier scholarship” (ILPH, 3). Indeed, at its birth, in the 1980s, much of critical scholarship’s approach to history was conceived as a re-examination of the discipline’s traditional celebratory genealogies of (international) law as a story of civilizational triumph. The idea that “an examination of sovereignty reveals that the linear historical story is wrong, and that its acceptance has skewed our current understanding of the doctrine’s meaning” (Cass, 355). Instead of a triumph of Western civilization, TWAIL saw an unfair regime based on an imperial design that favours the powerful at the expense of the weak.

These critical re-evaluations often took the form of a study of “history in international law”. As Orford retells, for example, critical scholars “looked to history in order to resist the claim that humanitarian intervention had played a role in official justifications for the use of force in earlier eras” (ILPH, 32). This, as seen above, should not be problematic to a historian, because it is a discussion in the domain of law. But, increasingly, TWAIL scholars sought to tackle “the question of whether – and how – the imperial past is relevant to international law”, concluding (rightly, in my opinion) that “imperialism is ingrained in international law as we know it today” (ILPH, 34). This is where things got tricky.

Take for example a debate that tends to emerge often in Orford’s writing, between TWAIL scholar Anthony Anghie and contextualist historian Ian Hunter. Anghie’s landmark book, “Imperialism, Sovereignty, and the Making of International Law”, sought to redefine the way us international lawyers approached the history of our discipline and the fundamental assumptions that govern it, starting with the legacy of Francisco de Vitoria.

Traditionally, publicists have framed Vitoria as someone ahead of his time and a “Founding Father” of international law. In this light, he was a humanitarian that resisted Spanish attempts at treating the indigenous people of the Americas as objects rather than subjects. To quote James Brown Scott’s 1934 praise, Vitoria had merit because he believed “the barbarians held title to their ‘principalities’ (…) upon an equality with the kingdoms of Spain and France”. Thus, Scott concludes, Vitoria “create[ed] a law of nations, which is still in existence and which is developing along Victoria’s [sic] lines”. Based on this appraisal, Scott went on to write the history of international law on the idea that it was born as a fair and humanist system, bristling with historical pedigree, in the pages of Vitoria five centuries earlier.

Anghie disagreed. He claimed that Vitoria’s defence of indigenous dominion through the framework of the European ius gentium was a ruse. It was borne not out of humanitarianism, but out of a strategic effort to put the Spaniards in a better position. In Vitoria, Anghie says, “[t]he universal system of divine law administered by the Pope is replaced by the universal natural law system of jus gentium whose rules may be ascertained by the use of reason” (Anghie, 20). This effectively removes international law from Papal and divine jurisdiction and places it under the secular control of state sovereigns. And under this new secular law, Anghie continues, Vitoria’s argument becomes “that the Spanish have a right under jus gentium to travel and sojourn in the land of the Indians; and that providing the Spanish do not harm the Indians, the natives may not prevent them” (Anghie, 20). In other words, “Vitoria’s scheme finally endorses and legitimizes endless Spanish incursions into Indian society”, given that the “apparently innocuous enunciation of a right to ‘travel’ and ‘sojourn’ extends finally to the creation of a comprehensive, indeed inescapable system of norms which are inevitably violated by the Indians” (Anghie, 21). Spanish conquest thus becomes inevitable and Vitoria, instead of a humanitarian, becomes the Father of an imperial tool of Western domination called international law, that endures until today.

Hunter, the contextualist historian, strongly and harshly disagrees with Anghie’s views. For Hunter, the ius gentium, seen as a regional normative system, lacked a “unifying ideological essence” (Hunter, 16) – it was used for different things, by different people, at different times. Vitoria’s concept of the ius gentium was “theologico-juridical”, not secular, which means it is “impossible to sustain the view that nineteenth-century imperialism found its ideological origins in Vitoria’s jus gentium” (Hunter, 17-18). In other words, seen in context, Vitoria was not trying to set up a legal system to organise sovereign states and allow them to expand their influence in the so-called “New World”. Vitoria, as a sixteenth century Dominican friar, had other concerns, namely “to maintain the subordination of civil sovereignty to natural law norms accessible only to the ‘wise clergy’ authorized by the apostolic succession” (Hunter, 18).

This makes sense if one reads Vitoria’s anxious writings about civil power. Far from a secular publicist, Vitoria appears as an outraged Catholic zealot, angry at those pesky Lutheran heretics who have “apostatized from God” and are now “stir[ring] up sedition against our rulers” by claiming that they could depose their Catholic kings on religious grounds (Vitoria, 14). Of course, Vitoria disagreed: kingly power comes from “natural and divine law, not from the commonwealth or from men” (Vitoria, 14). A Catholic King is king not because his people think he is a good Christian, but because God put him there.

So, when this anxious Dominican friar hears that his fellow Catholics are arguing that those indigenous heretics should be treated as objects, rather than subjects, because, as heretics, they can’t truly have dominion over their lands, he panics. If the Spanish can remove an indigenous “king” on the basis of his alleged heresy, why can’t the Protestant Germans remove a “heretic” Catholic “king” as well? Read in this context, De Indis is not Vitoria’s attempt at creating any kind of secular international law, but rather to “assert a Catholic theocratic construction of civil authority both against the Protestant heretics who were proposing to ground authority in a purely worldly covenant, and against the Indians, should they attempt to resist their conversion to Christianity” (Hunter, 18).

In ILPH, Orford describes Hunter’s criticism as the product of a deep-seated belief that there is a “longer struggle organised around a binary structure” between “contextual historians who take a properly impartial or historical view of the past” and “their scholastic enemies who believe in metaphysical meanings and transcendent norms” (ILPH, 165). This broad underlying assumption about the nature of law may be important for us to be able to read Hunter’s views in context. But it does not, in my opinion, provide a sufficient counter argument for his concrete disagreement with Anghie on Vitoria.

In simpler (and perhaps less exasperated) terms, what Hunter is saying is that Vitoria is not the “Father” of international law, whether that international law is, following Scott, humanitarian and fair, or, following Anghie, imperialistic and racist. Vitoria is, at best, another von Hagenbach trial – a useful precedent for lawyers to see how the international was addressed in the 15^th century. He was not the first publicist nor was he creating a secular international law (in fact, he did not even advocate for secular law!).

Linear histories, whether of eternal progress or oppression, are in fact very difficult to sustain. Like Skinner says, it is historically very difficult to “trace the morphology of some given doctrine through all the provinces of history in which it appears” (Skinner, 10). Concepts are simply not the same in every period they appear. They rather respond to different linguistic contexts and interact with other utterances with different language rules. Just because Vitoria was addressing issues that we can describe as “conquest”, “discovery”, “colonialism”, and “sovereignty”, does not mean he was talking about them in the same way as we understand them today.

This of course does not mean that the past has nothing to teach the present or that we should just accept Vitoria’s unfairness towards the indigenous peoples. His views were unfair. He did put them in a worse off situation. It just means that we do not necessarily need to call out this unfairness in the context of a broader 500-year history of international law. There does not need to be an overarching design from the 1500s to today to create an unfair international law. Sometimes, evil is banal. The product of people responding to their own interests without paying attention to the broader picture.

This also does not mean that there never was a plan or a concerted project called “international law”. This is, for instance, Koskenniemi’s conclusion in his greatly influential The Gentle Civilizer of Nations. Koskenniemi tells us how the “Men of 1873” sought to represent the “legal consciousness of [white, Western] civilization” through the re-conception of the international jurist as a member of a “transhistorical fraternity of aristocratic heroes” (Koskenniemi, 78). These 19^th-century lawyers thus turned the history of international law into the story of “individual lawyers acting like so many chivalrous knights, defending the oppressed against the oppressors, peace against war, carrying the torch of civilization (from Greece and Rome) through dark ages to the present”(Koskenniemi, 78). According to him, this, and not the 16^th century, is the time when Vitoria, Suarez, De Las Casas, and Grotius are transformed into the “Fathers” of international law we know today.     

In other words, instead of conceiving Vitoria as a cog within a greater 500-year-old historical machine, and the starting point of today’s unfair system of international law, we could see him as a paranoid Dominican friar worried about the Reformation, whose ideas were anachronistically abused and manipulated by 19^th century lawyers, to justify a celebratory linear history of international law as a Western civilizational wonder capable of justifying the colonial, imperialist and racist designs of their sovereigns. That is, Vitoria would enter the history of international law not as an “original sin” in the 16^th century, but as part of the Men of 1873’s linguistic context in the 19^th.

Gentle Civilizer is thus a good example of the kind of synergies that can be achieved between law and history. As Orford herself acknowledges, Koskenniemi’s argument was a functional critique that “challenged standard histories” and yet, at the same time, “received a much warmer welcome from historians”, even if she would not herself describe the book as “TWAIL” (Orford, 301).

Of course, the absence of a 500-year linear history does mean we need to grapple with a much more chaotic, much less organised concept of history than the neatly drawn genealogies that colour the introductory chapters of our favourite PIL textbooks. But shouldn’t “law as chaos” resonate with TWAIL and CLS much more than “law as planned order”? After all, one of the main tenets of critical studies is the believe in law’s radical indeterminacy. Legal rules can be used to defend most any position and hence cannot really be legitimate or authoritative. All law is, to use a classic term, penumbral, and every case of adjudication, hard or not, requires judicial legislation. And since justice does not consist in the impartial application of rules derived from prior consent, then the specifics of the law tend to follow the interests of those with power. There is no “original Vitorian sin” needed in this story. No five-century long overarching plan. From a Critical and TWAIL point of view, the history of ius gentium can lean into oppression because most law does, not because it is the origin story of our own oppressive concept of international law and its 19^th-century legacies of racism and Eurocentrism.

These brief posts will not of course, as I said before, solve the Orford-Skinner or the Orford-Hunter Debate. Like all Great Debates, we may end up reading and re-reading them for many years to come. But I do hope that in these lines I may offer a different perspective on how to approach them: not as the expression of a necessary methodological incompatibility between our disciplines, but as a pool of wisdom from which to extract valuable lessons in the construction of our interdisciplinary common future – one where historians see law as language and where lawyers see context as linguistics.