26 Oct Originalism’s Lesson for International Law (Or Why Grotius is not its Father)
Judge Barrett is set to become Justice Barrett. Throughout her nomination process, I have been quite fascinated by the discussion surrounding her originalist views and originalism in general. As someone not used to originalism as a theory of Constitutional interpretation (it has not really caught on in Peru), this added exposure has offered me some new perspectives I had not previously considered, including originalism’s identity as both a legal and historical method. Given my particular interest in the interconnections between law and history, this post came about almost reflexively. With it, I want to use the ongoing discussion in the US about originalism to draw some lessons I think international law in general might benefit from.
Let me start with my main concern about Judge Barrett’s beliefs. During her confirmation hearing, she said that her originalist convictions compel her to “interpret the Constitution as a law”, meaning that she “understand[s] it to have the meaning that it had at the time people ratified it” and that “that meaning doesn’t change over time”. This is quite a remarkable statement – and, as I said, not just a legal one.
The idea that past meaning can be recovered is a historical claim. And within this overall claim, the idea that the meaning that can be recovered is an original one (i.e. a correct, objective, truthful one) is no less than extraordinary. The problem of “meaning and understanding” has vexed historians for centuries – and as Quentin Skinner aptly phrased it, since the latter half of the 20th, “[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” (See Skinner, p. 1). The idea that the “original” version of history can be recovered has been widely discredited, plainly because “the facts of history (…) do not and cannot exist in a pure form” (Carr, 24), they are affected both by those who record them and those who later interpret them.
Of course, this does not mean that no meaning and no factual knowledge can be recovered from the past. But it does mean that whatever is recoverable is a function of methodology. How will one purport to recover this meaning is a complex question that goes down a pretty deep rabbit hole. Take, for example, the work of Jacques Derrida. He claimed extracting the meaning of a text is impossible because one simply can never guess what the author wanted to achieve with it. To use his well-known example, imagine we find an unpublished manuscript by Friedrich Nietzsche. In this manuscript there is an isolated phrase, written in quotation marks: “I have forgotten my umbrella”. Can we know what Nietzsche meant when he wrote this line? For Derrida, the answer is very clearly no. “We will never know for sure what Nietzsche wanted to say or do when he noted these words” – he says – “nor even that he actually wanted anything”. It might be a simple citation or something he overheard and wrote down. There is no way to say with certainty that, when Nietzsche wrote that simple line, he had, in fact, forgotten his umbrella.
Not everyone is as categorical as Derrida, of course, and we can spend a long time going from theory to theory. The important point here is that in claiming it can recover an “original” meaning, originalism is venturing into some very muddy waters with a lot of self-confidence.
So, before we go further down the rabbit hole, we’d do well to understand what originalism actually means when it says it can recover original meaning. To do this, lets follow the writings of perhaps the most famous originalist (at least in my non-United-States experience!): Antonin Scalia. In his words:
“The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated.You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words”.
This is quite an extraordinary statement. Unlike Skinner or Derrida, what Scalia means by “meaning” is not the understanding or intention of the author, but rather the received meaning – the meaning that the “American Public” would have interpreted in reading the text for the first time. That is, an originalist’s interpretive goal “is to understand how an informed reader of the time would have understood the legal commands it issued” (Rakove, 584). And this is where the pitfalls start.
Determining the “received meaning” of an imagined construction called “the average 18th century American citizen” is, in methodological terms, impossible. And since Prof. Rakove can explain why in a much better way than I can, I will let him do the honours. To show the impossibility of the task, Rakove sets out to construct the imaginary citizen at the heart of the originalist methodology – a person he brilliantly called “Joe the Ploughman” – and decided to pay him a visit:
“Dropping into his humble farmhouse one day (…) we look on Joe’s shelves to discover what literary resources he had ready to hand. If his background were firmly Protestant, a Bible and Foxe’s Book of Martyrs would be good bets, though how these would help Joe in the realm of constitutional interpretation seems a puzzle. (…) We would be better off, though, if we could suppose that our imaginary reader had a copy of Sir William Blackstone’s Commentaries on the Laws of England at hand. (…) Yet in constructing Joe the Ploughman’s literary identity, why would we want to rely solely on works like these? Someone reading the Constitution in 1787-1788 – a citizen engaged in the original effort to ascertain its original meaning – likely would have joined the intense political debates that preoccupied concerned Americans. The citizen also probably would have read the political literature of the Revolutionary era. Of course, for the purposes of public meaning originalism, perhaps Joe would be better qualified had he ignored those debates entirely. Ignoring what his compatriots were arguing about presumably would place him in a better position to judge the meaning of the Constitution solely on the basis of its linguistic attributes, as opposed to the political noise surrounding its adoption. Yet that would leave us in another awkward position, assuming that independent, undecided, or median voters – or better, those who proved too lazy to vote at all – would be the optimal readers of the text. (…)”
Joe the Ploughman, therefore, does not exist. Nobody exists beyond the discourse in which they operate. Nobody comes in “pure” form. Joe is, as Rakove concludes, “nothing more nor less than a creature of the modern originalist jurist’s imagination”, and as such, not a source of objective meaning but subjective policy preferences – precisely what originalists are trying to avoid.
But, if “original public meaning” is not recoverable, then what is? As I mentioned above, this is a deep rabbit hole. So, in order to keep it in blog post length, let me focus on the writings of one particular methodological school: contextualism.
For contextualist historians like Quentin Skinner, there is some additional knowledge to be learned from a text that lies beyond the mere words of a text. The words, he says, 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, a poem may be written to cause a specific emotion on the reader – sadness, excitement, happiness. This 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.
To understand Skinner’s point, imagine a policeman who sees a skater on a pond and says “the ice over there is very thin”. For Skinner, “to understand the episode we obviously need to know the meaning of the words. But we also need to know what the policeman was doing in saying what he said” (Skinner, 104). In this case, the specific utterance was a warning. And knowing that this utterance was a warning and not, say, a quote, is historically relevant.
But let’s go back to Derrida. How is it that he cannot decipher Nietzsche’s intent, but Skinner can decipher the policeman’s? Skinner would say that that is because he knew the context of the policeman’s warning, whereas Derrida did not know the context of Nietzsche’s phrase. For Skinner, therefore, to fully understand a past utterance is to understand the context in which it was uttered (and hence the name of the school he leads). In his words:
“[A]ny act of communication will always constitute the taking up of some determinate position in relation to some pre-existing conversation or argument. It follows that, if we wish to understand what has been said, we shall have to identify what exact position has been taken up”.
In other words, historical utterances exist in context. They are (usually) expressed in response to someone or something with a specific objective in mind. Think, for example, of The Federalist Papers, and the reason for their existence. They were written in a specific way to achieve a specific result.
By this time, you might be wondering what is the purpose of all this? Why am I taking you through a tour of US constitutional law and historical methodology in a blog dedicated to international law? Well, for starters (and as evidenced by its recent “turn”) international law has many connections to history. It is a system of rules dating back centuries (though we will touch more upon this in a bit!). And, just like all law, it is bound to encounter inter-temporal problems, i.e. problems of applying the law across long periods of time.
Take, for example, the famous Island of Palmas case. There, arbitrator Max Huber needed a methodology to extract the proper way to analyse past law. He then set out the essence of legal inter-temporality:
“[A] juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled”.
This is, of course, true. Lawyers need a way to properly understand “past law” in order to settle modern day disputes. Title to territory may have been acquired a long time ago, under very different rules, and it would be both legal and historical anathema to purport to apply modern law to past matters.
The key issue, in my opinion, is that us lawyers don’t usually see the connection between Huber’s dictum, that past law should be appreciated “in the light of the law contemporary with it” and Skinner’s proposition that past utterances should be appreciated “in relation to some pre-existing conversation”. We – the lawyers – tend to look at history in a linear line of progress, with the current version of (international) law as the ultimate goal to be achieved. This is why international law has a “father” and a “birthplace”. This, despite the fact that the quintessential “Westphalian principles” of sovereignty and equality “cannot be found in any of the three main Westphalian Treaties (…) as principles of the law of nations” (Lesaffer, 129).
It is this linear vision of the history of international law that sustained its Eurocentric, imperial origins. According to Pitts:
“That story said that international law had its origins within Europe, above all between sovereign European states that viewed each other as free and equal. It saw a decisive moment in the Westphalia treaties, which, it said, above all set out to protect states’ independence from intervention from outsiders. And, it concluded, this essentially European system gradually came to incorporate other states as they reached the appropriate ‘standard of civilization’”.
This is, of course, not true. As authors like Becker Lorca have argued, “European international law” was a regional order that many times coexisted with other similar systems. Likewise, it was often appropriated and reinterpreted by non-Western actors seeking to engage the Western world. These contributions are often erased by the linear story, where, to quote the 8th edition of Brownlie’s Principles (in as recently as 2012), “international law travelled with the colonizers”. Instead of a construct built in history through various different theories and actors, international law becomes an epic saga with a spoiled ending in 2020.
In this way, we read history in the same fashion as we would trace precedents. One court creates a test or standard to address a particular problem. Then another court, in a related case, expands or refines the test to account for a variation in the facts. Then another. And another. Until we can say that we have traced the evolution of the concept (the test) through time.
If we believe Skinner (and Huber), however, this is not how history works. Past law/utterances are not steppingstones in the way to historical progress. There is no single line connecting Vitoria to Grotius to Vattel to the Lotus case. Rather, each utterance, each legal claim, is but one connection point in a complex mesh of conflicting ideas, arguments, debates and discussions, each having their own intent. Francisco de Vitoria, for instance, did not write his Relectiones to pave the way for Grotius or a “Grotian” version of international law. He could not have known what connections Grotius would make to his work to write his own. Rather, Vitoria was trying to address the collapse of Papal authority as arbiter of justness after the end of the Middle Ages and the start of early modern times. Grotius, in turn, did not create a standard code of rules for others to build upon. His words have been used, twisted, and reinterpreted through time, just as much as they have been honoured and revered. Understanding these twists means understanding the history of international law, not as the life of Grotius’ son, but as the denouement of a complex process of assembling and disassembling different legal theories.
Now that we understand history not as straight line but complex mesh, we can see how this linear vision of international law can share some of the same pitfalls as originalism does. Originalists pretend that meaning does not (or at least should not) change over time and that there are some timeless concepts that can be transported from the past into the present without any adaptation. It is an argument of continuity. Many international law scholars, on the other hand, like to believe their discipline was born in 1648 and has continued to evolve, uninterruptedly until today. This is also an argument of continuity. Sovereignty would be a timeless concept that pops up every so often in the writings of this or that author, who were engaged in the historical, linear, process of reaching to today’s “complete” version of sovereignty. But sovereignty “then” was likely not the same as “sovereignty” now, even if both concepts happen to share a same name.
This is, I know, a lot to digest (and this post is getting too long!). Changing the way we lawyers approach the history of our discipline requires some degree of openness to inter-disciplinarity that does not exactly come natural to most specialised disciplines. It will take time, and certainly more than a blog post. So, to accomplish a more realistic conclusion, how about we start by not calling Grotius the “Father of international law”? For now, I will settle for that.