International law is at the heart of many of the most contentious issues in contemporary foreign relations—should the international community intervene more aggressively against ISIL? Should Palestine be recognized as a State? Are drone strikes a lawful tactic to use against suspected terrorists? Yet while international norms prominently shape diplomatic discourse, there is a growing disquiet that the discipline itself has lost its normative bearings: What is the point of international law? How did it come about? What purposes does it serve?

Emmanuelle Jouannet's The Liberal-Welfarist Law of Nations: A History of International Law addresses these portentous questions through a review of ‘the history of the purposes of international law so as to take a fresh look at the point behind it all’ (1). The book's thesis, in brief, is that since its emergence as an autonomous discipline in eighteenth-century Europe, international law has had two central purposes. One, its ‘liberal purpose’, aims to promote and protect the sovereignty of free and independent States. This purpose advances a State's freedom to choose its own ends, for ‘independent self-determination’ (33). International law's second, or ‘welfare purpose’, in contrast, takes ‘utility, happiness, the common weal and the material and moral betterment of peoples [as] the purpose of the law’ (4). Jouannet's monograph is an extended argument that international law is and has been a ‘liberal-welfarist law’ and that the key to its meaning lies in the ever shifting relationship between these two purposes. To support this claim, Jouannet presents a ‘conceptualizing history’, as opposed to an ‘events history’, that, she asserts, generalizes actual historical experience and provides a conceptual map that makes sense ‘of the discourse and practice of international law past and present’ (3, 4).

The book periodizes international law into three eras: modern, classical and contemporary. Modern international law starts with the ‘Vattelian model’ of the mid-eighteenth century when, she argues, international law was first ‘conceived and thought of as a legal order and no longer as a mere source of law common to all men’ (13). As she does throughout the volume, Jouannet locates this jurisprudential development in the context of larger intellectual, political and economic trends. Thus, the modern law of nations was strongly influenced by the ‘liberalism’ associated with the writings of Locke, Smith and Bentham in Britain, Jefferson, Franklin and Paine in the United States, and Montesquieu, von Humboldt and Condillac on the continent. Moreover, it emerged when earlier forms of religious, hierarchical and traditional forms of organization were breaking down; when Europe consisted of more than 300 small States; and when this plural and non-homogeneous group of States sought rules to enable them to live ‘with fairness, in freedom and in safety while ensuring the happiness of their peoples’ (27). Modern international law's ‘liberal’ dimension was designed to permit the peaceful coexistence of multiple European sovereigns that were divided by diverse moral, philosophical and religious conceptions of the good life (29).

At the same time, modern international law was centrally concerned with the State as a human group that would strive for the happiness of its people. To be sure, this goal was ordinarily met through domestic law and politics (61). But Jouannet analyses contemporaneous treatises, diplomatic notes and other instruments to demonstrate the pervasive intra gentes dimensions of modern international law. For example, this law contained numerous ‘rules of assistance’, including that States ‘had to help a nation that was assailed by an enemy threatening to oppress it, they had to give succor in the event of a famine, take in its nationals (under certain conditions) and treat them well’ (77). Thus, modern international law was ‘the law of nations, not exclusively in the sense of law among nations but in the sense of all their rights and duties, whether for internal or external use’ (65). In excavating the oft-overlooked welfare dimension of eighteenth-century international law, Jouannet challenges influential historiographies, such as those by Wolfgang Friedman and Georg Schwarzenberger, which claim that seventeenth- and eighteenth-century international law was a ‘law of co-existence’, and a ‘law of co-operation’ did not develop until the twentieth century.Footnote ¹

In Part II of the volume, Jouannet argues that during the nineteenth century, ‘the law of nations of the Moderns became the classical law of nations’ (110). As with modern international law, the development and content of classic international law was firmly rooted in contemporaneous political, economic, and intellectual developments, in particular, ‘the triumph of liberalism in nineteenth-century European and American regimes’ (115). Jouannet highlights the ‘principle of neutrality’, or tolerance, associated with classical international law (121). Under this principle, international law was deemed neutral regarding States’ internal political and religious choices, leading to an evolution from a ‘law of states’ to a ‘law between states’, giving ‘free rein to the total freedom of domestic sovereignty of the state in its own territory’ (121).

Despite this triumph of international law's liberal purpose, the discipline's welfarist dimension did not entirely disappear; tragically, however, it would be employed in the service of colonialism. Specifically, while international law's liberal purposes were ‘reserved exclusively for European and then civilized states, the welfarist end was here to be destined for non-European and uncivilized states’ (136). The rules regarding these States were not based on liberal principles of equality and freedom, but rather were built on the ‘imbalance and actual inequality of the material, economic and social situations of certain peoples’ to justify a host of interventions—ranging from ‘the existence of special rights, to the regime of capitulations, of international and colonial protectorates, the appropriation of land, the right of ownership, the exercise of external sovereignty or even of internal sovereignty’ (138).

What explains this egregious inversion of international law's welfarist impulse? Jouannet notes that eighteenth-century jurists and liberals were highly critical of the injustice and violence that marked European life. However, ‘by the nineteenth century, the mindset had totally changed’. In particular, Europeans felt a ‘moral, intellectual, political, economic and technological superiority … over the rest of the world’ (144). The conflation of liberalism's progress narrative with other strands of European thought emphasizing human perfectibility led to the conclusion that the general welfare of people throughout the world could be advanced by pursuit of European notions of progress—imposed by force if necessary (145–7).

Significantly, Jouannet argues that this was not a necessary outcome: ‘Liberalism does not inexorably lead either to imperialism or to anti-imperialism. … Although liberalism readily drifts towards imperialism because of the very idea of progress and its attachment to economic freedom, the founding political principles of liberalism—neutrality, liberty and equality—are intrinsically anti-imperialist’ (143). Thus, the volume emphasizes the cultural and historical contingency of the complex relationship between international law and the colonialist project, and both joins issue with and extends other important recent work on this vexed topic.Footnote ²

In Part III, Jouannet turns to contemporary international law, exploring the implications of the substantial transformations in the field since the end of World War II. She argues that recent years have seen international law's liberal purpose split into two strands. First, the classical liberal purpose of preserving a State's internal sovereignty has continued. But at the same time, contemporary liberalism places significant weight on the promotion of democracy, human rights, and the rule of law. As Jouannet properly notes, these two sets of objectives can often be in deep tension. Moreover, although international legal actors often proclaim that democracy, human rights and the rule of law are interdependent and mutually reinforcing, Jouannet highlights the uncomfortable fact that progress on one of these liberal desiderata hardly guarantees progress on the others. In particular, the institution of democracy may lead to retrenchments on human rights and an undermining of the rule of law—as illustrated by worrisome developments in the Arab Spring. Jouannet offers trenchant criticisms of conventional thinking regarding the relationships among democracy, human rights and the rule of law, although some readers may wonder whether these are more properly considered part of international law's welfarist purpose.

Jouannet claims that the welfarist purpose has come to focus on ‘well-being’. Noting UN efforts on full employment, economic development, social services, public health and a host of related issues, she argues that in its current guise the welfarist purpose ‘is almost unlimited in its area of application and invention’ (260). The multiplication of goals, in turn, risks charges of ineffectiveness—think of efforts to address global poverty—which, she argues, threaten eventually to undermine law's legitimacy.

Emmanuelle Jouannet provides a sweeping—and sobering—interpretation of international law's origins, development, and dual purposes. Her provocative account of continuity through change presents a powerful challenge to international law's usual progress narrative; and her examples of law's folly and overreach constitute a cautionary tale. To be sure, like many historical projects, this book is deeply informed by contemporary preoccupations, including debates over global social and economic inequalities and concerns over fragmentation. Hence the ultimate question raised by this volume is whether a richer understanding of the discipline's history can provide intellectual resources or conceptual frameworks that will enable us to better comprehend international law's current possibilities and limits.