Symposium on Rewriting Histories of the Use of Force: Mnemohistory and the Affective Life of International Law – A Method for the Madness

[Miriam Bak McKenna is Associate Professor of Law and Global Governance at Roskilde University, School of Social Science and Business. Her book Reckoning with Empire: Self-Determination in International Law (Brill) was released in December 2022.]

By now it is perhaps axiomatic to assert that the historical narratives surrounding international law are rather murky at best. As the canon of texts revisiting and critiquing these accounts expands, the creeping sense that international law finds itself in the midst of a George Santos style identity crisis continues to grow. History may be woven into the psyche of international law, but as has been shown time and time again, this history is riddled with ambivalence and anxieties.

Luckily help is at hand, and interventions have been staged by lawyers and historians alike (a thematic convergence that has rapidly descended into an epistemological skirmish). How best to approach the question of international law’s past – or more specifically the issue of temporality and the role of the politics of knowledge in this account – has raised the hackles of scholars of all schools and methodological inclinations. One cannot help but see these antagonisms (and often well-founded frustrations) as a proxy war in the broader debate on legitimacy, truth and disciplinary gatekeeping; one being played out across every academic field and most prominently in the public domain (although in this author’s humble opinion, the defensiveness of my colleagues in part stems from having finally found something outside of positivism in the methodological poverty of our discipline on which to hang our hats). With charges of anachronism, presentism and instrumentalism still smoldering, and the ripostes and counterattacks no doubt setting the scene for some rather awkward conference encounters, it would probably be wise at this point for scholars on both sides of the debate to concede ground and return to the pursuit of a shared enterprise.

Baring that contingency (and let’s face it, if I know academics the chances of that happening are slim) the possibility of some middle ground – one in which the fundamental question of law’s oscillation between norm and fact – is being explored by scholars with less skin in the game. The issue of how else we might weave questions of law, method, positionality, temporality and normativity into legal historical research has created fertile ground for new approaches. One issue that has begun to attract the interest of scholars is that of how international law produces its own sense of truth and facilitates its own narratives – a question that traverses the boundaries of temporality and opens new conversations about the role of history in international law.

It is this question that Agatha Verdebout explores in her latest work, a fascinating exploration of how it is that the narrative of indifference (the belief that no legal provisions restricting the use of force existed before 1919) came to form part of the origin story of the 20^th century prohibition of the use of force; a view still shared by the majority of international legal scholars despite much evidence to the contrary. Of the diagnostic tools deployed to plumb the historical quagmire and the unreliable narrators who sustain it, the mnemo-historical approach adopted by Verdebout, drawing on Jan Assmann and Claude Lévi-Strauss, offers a unique reflection into how international law writes and remembers its own history. Turning the lens more firmly on the ‘invisible college’, the book goes beyond engaging the overarching myths that govern the discipline (‘civilising’, ‘liberal-welfarist’ etc.) and traverses the mindset and identity of international lawyers, and how this in turn has informed historical practice in the field. (Frankly anyone who, like Verdebout, manages to weave the cognitive dissonance of a 1950s alien doomsday cult into a discussion of the self-aggrandizing myths of the international legal profession has got my attention.)

‘Unlike history proper’ Assmann explains, ‘mnemohistory is concerned not with the past as such, but only with the past as it is remembered’– traversing the actuality rather than the factuality of history. History, through a mnemo-historical lens, invites us to consider not only how the past is recorded but how this past appears in collective memory. The role of identity is central to this process, influencing the form and function historical narratives take. Histories become like a cultural object, tools for both preserving and projecting beliefs into the world; an approach that sets up a fascinating discussion of how the past is remembered (I, alongside a growing group of scholars have made a similar case for devising materialist history to investigate how international law as a field has projected its identity through time, for example through physical structures, promotional material, etc).

From this vantage point, Verdebout explores how disciplinary identity has played a decisive role in the creation of the narrative of indifference. The critical moment, as she explores, is the interwar rebranding of international law, where a decisive line between pre- and post- war practice was drawn by international legal actors. The collective forgetting of pre-war doctrine, she reasons, can be understood almost as a form of alibi creation, an attempt to resolve the contradictions posed by World War I on the field of International Law, by shifting its failures to the realm of international politics.

The events of 1914–1918, in fact, scattered the discipline’s foundational belief about the pacifying power of international law and were perceived as posing an existential threat on the discipline. The narrative of indifference, and its diffusion outside the boundaries of the profession, erased the contradiction between events and beliefs, and, in so doing: (i) restored coherence in the representation that international law had of itself and (ii) remedied the loss of credibility, which it felt it suffered from outside the profession.

But how was it that this narrative, despite its obvious errors could be collectively rationalized by the profession at large? Here the theory of cognitive dissonance comes to the fore. Drawing on prominent works like Festinger’s A Theory of Cognitive Dissonance (1957) and When Prophecy Fails (1956) which explores the self-reinforcing belief systems of the Seekers cult, who faced with the failed prophecy of their doomsday beliefs did not stay from their convictions, Verdebout posits that a similar scenario confronted international lawyers.

If international law regulated the use of force, how could the war and all its excesses, in fact, take place? And if international law truly had an ordering and pacifying power how could these horrors not be prevented? International law had failed its main and most important mission….. 

The war was decisively felt as being the antithesis of the belief on which the existence of international law lied, just as the fact that the world did not come to an end on 21 December 1954 was the plain opposite of the belief upon which the existence the Seekers rested.

The emotional impact of these events, coupled with their faith in the project of international law and the deeply felt need to resurrect it through the processes surrounding the creation of the League of Nations (both as a political and personal project) paved the way for this dramatic change in cognition. Confronted with this contradiction, international lawyers sought an alternative rationalization in order to navigate this dissonance. And so, she argues, the narrative of indifference was born and swiftly adopted as dogma, transforming the events of World War I, from a failure of international law to a triumph of international law.

It is a bold claim, one Verdebout seeks to substantiate by reference to textbooks, something she considers illustrative of the latent cognitive frames of an academic field, coded by reference to linguistic analysis. There are empirical limitations to this approach. Of course, gleaning the “core values” of the actors involved is difficult given that ethnographic observations and interviews with the participants is out of the question. I’m still on the fence about whether textbooks generate an accurate reflection of the state of the field, or is illustrative of its core identity, despite several interesting studies emerging in recent years; Anthea Roberts’s being the most prominent. This is for the simple reason that those writing international law textbooks tend to derive from a rather slim demographic. Supplementing with additional historical material, particularly memoirs, interviews, debates, etc. to reflect the beliefs and mindset of a wider group of actors would have strengthened the argument significantly. Despite these empirical limitations, Verdebout’s discursive analysis presents a convincing case for international law’s self-projection as a vector of order and social progress, and how this crystallized during the interwar period.

The interwar transformations of international law have generally received less attention in the historical literature, with some notable exceptions. Nathaniel Berman has explored how the “Modernist break” that transformed international society at this time in art, literature and political theory – also pervaded the field of international law (see also here). Just as cultural modernists efforts were directed signalling a break with what they saw as the artifice of nineteenth century bourgeois culture, Berman’s wider thesis is that a ‘new international law’ created by these ‘modernists’ was equally a form of cultural upheaval and renewal. This process was marked by both discontinuity and radical adaptation – and deeply imbued with personal ambitions, hopes and disappointments of its central architects (and as Verdebout’s account demonstrates, a large degree of self-delusion).  In the words of Theodore Woolsey, ‘It is a complete change in the organisation of the Society of Nations. To visualise it requires imagination and hopefulness. But the alternative is despair’. Similarly, Natasha Wheatley has explored the cognitive shifts involved in the refashioning of international legal personality at this juncture, linked in no small part to a deeply held belief in the attributes and allegorical allusions of personhood. Wheatly traverses the metaphors of international subjectivity circulating at this time as a window into a ‘certain imaginative or mythic subconscious of international legal thought.’ Her anthropological account of international law’s ‘birthing of new subjects’ touches on the question of how the community of international law conceives of life; something that has traditionally escaped the field’s conceptual focus.

Berman’s, Wheatley’s and now Verdebout’s attendance to the affective aspects of this transformation provide a new perspective on the motivations and psychology of the field; one that is largely lacking in both critical and mainstream histories of international law. By and large international law has largely failed to see its creators as more than abstract specters, viewed largely through a rationalist lens; a view that has helped to maintain the artificial divisions between reason and emotion/ law and politics that structure the field. Through this optic, the creators of international law have reduced to conduits of grander narratives, or place holders in larger trends, rather than real people with individual subjectivity. Critical histories have worked to pinpoint broader structural biases inscribed in these communities, but individual consciousness and the connection to international legal contexts and processes has mostly been left unexplored. This is a problem not localized to international legal history. Until recently, global historians have paid little attention to the place of subjectivity and emotion in the historical processes they study. As Davis Washbrook notes ‘the world of the mind, of culture, ideas, and aesthetics, which informs how various peoples came to perceive and evaluate their own lives’ is still largely absent from global history.

In the context of international law, this marginalization of emotion has always sat strangely with what is at its core a deeply emotional discipline. Stoicism in the face of the horrors of war is one thing, but the choice to see emotion as the antithesis, almost a corrupting influence on the cool, rationality of international law has forged a reified view of international law that largely sidelines its humanness and fails to engage with what Gerry Simpson calls the ‘felt absurdities of international legal life’. As law and emotions research makes its way into the international legal field, this view is gradually changing. In what I will call ‘the turn to introspection’ in international law scholarship exploring both the imaginative and sentimental life of international law and international lawyers has flourished in recent years. How this will play out in the context of global legal history is still very much up for debate – particularly given the methodological disputes underway. Whatever form this endeavor takes, viewing international law “from below” is an invitation to inhabit a historical world in which the place of political desires and subjectivities in international law making and practice assumes a greater role. Be it through biographical approach, as several recent and upcoming texts adopt, or through the mnemo-historical approach that Verdebout’s Rewriting Histories utilises, attention to human experience and agency fills a lacuna in global legal history research, which also invites us to question how we – the reader – have both narrated and understood that history. It is an important methodological step towards expanding our knowledge of the affective life of international law and the regimes of truth and symbolic universe that have and continue to propel the project of international law forward.