1. Introduction
International legal history has come to enjoy greater attention both among international jurists and among historians. The variety of researchers interested in international law's past is reflected in the diverse ways to study it.Footnote 1 Against studies that approach international legal history as doctrinal studies – reading works of international legal doctrine, either within their historical context or not, often confined to a limited set of classics like Vitoria, Grotius, and Vattel – stand studies that focus on the law of nations as it has actually prevailed in practice.Footnote 2
Frederik Dhondt has delivered a paragon of the latter type of study with his PhD thesis, Balance of Power and Norm Hierarchy; even taking it a step further providing not so much an analysis of what the norms directing international relations were at the time or how they evolved, but insights into how law and legal reasoning operated in diplomatic relations between Europe's powers. Moreover, the book stands out as a study in international legal history of a period in time that is generally overlooked. Most international legal historians tend to stick to the late nineteenth and twentieth centuries. Or they tend to focus on historical events that are considered major turning points in the field such as the 1648 Peace of Westphalia, the 1713–1714 Peace of Utrecht, or the 1815 Congress of Vienna. To fill the gap, Dhondt turns to the so-called trente heureuses.
2. The trente heureuses
Dhondt discusses the period of relative repose in Europe following the War of the Spanish Succession (1701–1714) up to the War of the Austrian Succession (1740–1748). Europe was in search of stability after opposition to Louis XIV had resulted in a collision over the succession to the Spanish Crown. Ever since the mid-fifteenth century, European politics had been dominated by tensions between the main powers of its bipolar order, the French Crown and the Habsburg dynasty. The demise of Charles II of Spain without a direct heir threatened the European order. Since both a French prince and an Austrian archduke were among the main claimants to the Spanish Crown, Europe was at risk of facing a personal union between the Spanish Crown and either France or the Habsburg monarchy. Britain and the Dutch Republic entered the war in order to prevent either great power from gaining a position of hegemony. The war resulted in settling the succession to the Spanish Crown by an international agreement. This entailed a partitioning of the Spanish inheritance and excluding a future personal union between the Spanish and French Crowns by having Philip of Anjou (the new King of Spain) renounce his rights of inheritance in France; thus pushing aside French constitutional laws. The peace settlement was followed by a diplomatic reorientation. Dhondt analyzes this reorientation and the operation of the ensuing diplomatic system. The two ‘status quo powers’, i.e., France under the Orleans regency and Britain – where the House of Hannover had just taken over –engaged in a hitherto unlikely partnership. This partnership was constructed by the British Minister James Stanhope and France's Secretary of State for Foreign Affairs, Cardinal Guillaume Dubois, and continued by their successors Robert Walpole and Cardinal André-Hercule Fleury. Its goal was to direct European affairs and to contain the two revisionist powers, Bourbon Spain and Habsburg Austria, which were both unhappy with the outcome of the previous war. As long as France and Britain co-operated, they succeeded in upholding the Utrecht settlement. France and Britain effectively intervened by military means against Spanish claims over Italian territories. Several incidents and claims were subjected to diplomatic negotiations under joined French-British mediation, resulting in further treaties and two multilateral conferences, held at Cambrai (1722–1725) and Soissons (1728–1729). Dhondt sets out to focus on the role of law and legal reasoning in these diplomatic negotiations.
3. A (too) rich case study
Balance of Power and Norm Hierarchy offers an extensive case study of law in action in international relations – ‘how did diplomats make use of state-created legal obligations[?]’Footnote 3 – throughout these decades of reordering and fleshing out the newly established stability in post-Utrecht Europe. Dhondt presents his material in a highly sources based chronological narrative grounded in contextualized thinking. Studies in international legal history based on extensive archival research into primary sources are, unfortunately, rare and any researcher taking this road deserves to be applauded. (Re)constructing a synthetic narrative from historical data and embracing complexity and context constitute the core of the historical approachFootnote 4 and are the only way of gaining true and accurate understanding of the past. That goes for law of the past and the law's past too.
Dhondt's study is based on an impressive amount of archival and printed primary sources as well as secondary literature. He also showcases the ability to master thorough knowledge of historical facts and to connect factual knowledge in a way that renders deep insight in historical events. Whether that also produced a book to be considered a ‘good read’ is a different matter. The narrative is hard to follow, densely infused with details and diplomatic subtleties, as well as containing a confusing dramatis personae; a difficult to fathom jumble of facts and all kinds of considerations, denying the reader a chance of forming a general image that sticks without carefully reading and processing the book, probably multiple times. Any reader who is not a specialist of the period will be lost quickly.
The book's general theme – the way law and legal reasoning functioned in and influenced diplomatic practice – is overshadowed by this tsunami of historical facts. Dhondt's study would have profited had the central theme been singled out more; throughout the case description or in a more elaborate analysis following the narrative. His study suffers from an excessive craving for complexity and contextualization. In the author's words: ‘I preferred a chronological approach to a thematic one. If, politically speaking, “everything is in everything”, the role of law in the very dynamics of negotiations can only be shown if the reader is presented the complete story.’Footnote 5 And, ‘If attacking the iceberg creates the risk of entangling the reader in detail, it should never be forgotten that precisely these details reveal the profound structure of the life of the law and render our insight more complete.’Footnote 6 Undoubtedly, diplomatic negotiations are complex and aspects of them cannot be isolated as is done with variables in physical experiments. Likewise, diplomatic practice is indeed crucial to understanding historical international law. However, ‘completeness’ seems to be impossible in any case and Dhondt seems to forget that it is the scholar's task to bring order to apparent chaos. Admittedly, presenting a heavily sources based historical narrative is a massive challenge, but Dhondt could have been more merciful to his reader.
4. A fourth approach
There are many ways to engage with international law's past. Matt Craven distinguishes history in international law, history of international law, and international law in history.Footnote 7 The first approach concerns jurists in search of the origins of current law in order to provide historical arguments. The second approach concerns research into what the law was in the past and how it developed over time, combining legal questions with historical methodology. The third approach is at history's side of the continuum, regarding law as a phenomenon that is part and parcel of a wider historical context. Dhondt's study seems to fit best into the third approach. However, he raises a question that is not primarily a specification of the historian's question what the past was like, but a social science's one. Answering such a question calls for a fourth approach. By identifying a single ‘non-lawyers’ way of dealing with international law of the past, Craven puts both the historian and the social scientist in a single category, whereas their ways to conduct and present research are distinct. The fourth approach merges international legal history with the social scientist's empirical studies of international law to study how international law operates in practice and how it influences state conduct. History becomes instrumental to answering wider questions. Studies in this fourth approach are rare. Hence this fourth approach can be easily overlooked, whereas it has a lot to offer to our understanding of international law. Historical cases provide examples from different legal structures and legal cultures and thus allow for more variables to be taken into regard. Since the research concerns historical cases, historiography's methods are needed for sure. But to truly understand what is going on in a case, one also needs to apply the social scientist's way of consciously approaching case studies through theoretical lenses – without becoming reductionist as to the study of the case itself – instead of the historian's search for ‘the complete story’Footnote 8 and looking for understanding in combining facts within complex historical arrangements. This way is not about trying to understand the past – the historian's mission – but to understand relations between social phenomena through the study of cases from the past.
Dhondt presents his study as an interdisciplinary effort combining legal history, public international law, and history of international relations and claims to draw methodological inspiration from Pierre Bourdieu's legal sociology. However, given the question Dhondt raises, he seems to miss an essential step; i.e., exactly the step distinguishing the fourth from the third approach. His analysis would have profited from a more elaborated, operationalized and adapted theoretical framework. Dhondt sketches some theoretical concepts in his introduction to formulate a hypothesis and to place his study within the framework of developments within the theory of international law and diplomatic history. To be useful for the actual analysis of his case, these theoretical reflections are, however too brief and too general. Dhondt approaching law as discourse necessitates a framework to analyze discourse; to recognize it, reveal it, and understand it as discourse. As he stresses social structures, the analysis calls for a more elaborate exploration of what social structures are and how they can be recognized and revealed. His central question calls for much more elaboration on in what ways diplomats can use and create law and how these ways and their meaning can be recognized and analyzed. Subsequently, these theoretical and analytical tools should have been applied systematically to the case. The historians’ distaste for theory, or at least its overt application (a ‘theory free’ study of facts seems to be cognitively impossible)Footnote 9 seems to have stood in the way of a clear and thorough understanding of the study's central theme here. To be fair, combining empirical and (legal) historical studies in respect to the way international law operates in practice remains an approach in its infancy and the flaws in Dhondt's study criticized here are probably inherent to breaking new ground.
All criticism issued here notwithstanding, Dhondt offers a very rich and valuable study of empirical material that relates to many themes in thinking about international relations, international law and their histories. In the remaining part of this review, I will point out some of these themes.
5. Studying international law in practice
The first theme hits at the core of the question raised by Dhondt: how do law and legal reasoning operate in and influence diplomatic practice? Dhondt dismisses international legal history that turns to legal doctrine to discover international law of the past. He rightly asserts that doctrinal works hardly ever reflect obtaining international law correctly. On the other hand, he dismisses realism's denial of international law's significance to international relations. As an alternative to both, Dhondt presents international law as a social phenomenon, which has consequences for both ontological issues (what kind of law is international law and where do its norms come from?) and epistemological issues (how can international law be known?).
As to the ontological side, Dhondt addresses the relation between the structure of the international order and the nature of international law. In his view, horizontal relations within an ‘anarchical society’ – drawing on Hedley BullFootnote 10 – exclude that objective norms exist among and for states. States themselves create the law they are subjected to. Consequently, that law has to be subjective, expressing consensus among states.Footnote 11 Dhondt's reflections on international law's nature bring in the diplomats – whether they have a background in law or not. Dhondt attributes a crucial role to them in forming and effectuating international law as they invoke and develop law to sustain and strengthen their positions.
Dhondt regards (international) law as a normative discourse. It is a way state representatives talk to and with each other. It is rhetorically used; strategically, but also in a way that confirms legal norms. As a legitimating discourse, international law restricts state behaviour and protects weaker states. Dhondt explicitly refers to Martti Koskenniemi's work on the structure of legal argumentation,Footnote 12 but his study is reminiscent of law as language studies in general and offers an interesting case to engage with from their approaches.Footnote 13
Another ontological issue concerns international law's political character or the relation between international law and international politics; issues that increasingly gain the attention of students of international relations and some legal scholars.Footnote 14 The relation is generally miscomprehended both among international jurists and among international relations specialists due to ill-conceived concepts of politics and/or law. The two are often perceived as mutually exclusive (students of either discipline turning a blind eye towards the other) or as a matter of linearity in terms of causality (international law determines how political actors – are supposed to – act or international politics determines what international law entails as well as its degree of effectiveness). Empirical studies such as the one by Dhondt show that the relation between international law and international politics (or diplomatic practice) is far more complex than any linear way of causal thinking from the one to the other may suggest. True, as Dhondt shows, law is effective if backed by political interests, but it is not completely determined by them. As a discourse of legitimacy it holds an autonomous effect; thus falsifying the realist argument of international law being epiphenomenal to international politics, providing no causal effect on state behaviour of its own.Footnote 15
From these ontological reflections an epistemological stand – and matching methodology – is presented. Since Dhondt is concerned with ‘elaboration of legal norms through social interaction’,Footnote 16 law entails interaction within the society of states and amounts to an expression of consensus between parties, international law is not necessarily to be found in formal sources. Diplomats’ role in legal interaction means that diplomatic correspondence is a source to learn about law. This is partly a justification for the study's methodology. Dhondt makes a more general statement in respect to international legal history. He states how international practice is to be approached to discover normativity in international relations. As Dhondt himself acknowledges, legal positivists ‘will get the impression that there is not much law in my analysis’.Footnote 17 But he also claims that his story contains more ‘true’ law than positivists’ ‘closed and auto-referential system of norms’.Footnote 18
6. A turn to culture and social structures
A second theme relates to Dhondt embracing the cultural turn in historiographyFootnote 19 and Pierre Bourdieu's sociology. Whereas classical legal history would stick to the narrow scope of the jurist's view, Dhondt considers the impact of cultural factors such as the cultural background of diplomats, the values they held, law as a legitimizing means, the meaning of diplomatic rituals, symbols, and way of communicating as well as the impact of social structures, language as an expression of power differences, the interdependence of discourse and power, and personal relations – e.g., the close co-operation between like-minded statesmen such as Stanhope and Dubois – on international stability and the role international law could play in diplomatic affairs. In short, Dhondt draws attention to the social and legal structures and the culture within which international law gains practical meaning. In addition, he points at a plethora of other contextual factors and coincidences influencing the course of legal reasoning and law's efficacy: state finances, domestic and court politics, the demise of monarchs, religion, merchant interests, ups and downs in the careers of statesmen and diplomats. All these factors determine whether a window of opportunity for consensus and international co-operation in favour of stability would open; a clear lesson for international jurists to keep a wide and open view to the context in which international law has to operate. Moreover, several of these factors are located at the domestic level; the case thus presents a clear example of diplomacy as a series of so-called two-level games.Footnote 20
7. Major treaties as consensual framework
A third theme concerns the function of major peace treaties within early modern European diplomacy. Dhondt's analysis shows how a major peace settlement – in this case the Peace of Utrecht with its emphasis on the balance of power: ‘the starting point, or precondition to any legal analysis by the actors themselves’Footnote 21 – affected post war international relations. The core of this peace settlement provided basic principles determining the legitimacy of claims and compromises. Thus, as Dhondt puts it, diplomacy worked on the basis of a norm hierarchy, the peace settlement's core overriding other norms, i.e., inferior treaty clauses, legal titles, and domestic fundamental laws. His study fits in with the research according to which peace settlements ending epochal wars are deemed ‘constitutional’ to the post war international order,Footnote 22 or to contain a ‘consensus agenda’ that sustains post war international stability.Footnote 23 It also adds to these studies, since Dhondt establishes not only what principles and norms treaties contained, but also how they were subsequently used in diplomatic practice. Diplomats settled conflicts and reached new agreements within this ‘broad consensual framework’.Footnote 24 The analysis also shows how diplomatic practice confirmed this core time and again; that the core's value to international stability was recognized, allowing it to mitigate state behaviour, claims, and conflicts;Footnote 25 and that the international order was stable for as long as the great powers supported this core.Footnote 26
8. Legal pluralism
A final theme is that of legal pluralism. Heinhard Steiger has already pointed out that a single body of law did not govern the early modern European political order, but that several bodies of law infused its normative side. Steiger discusses the law of nations or European public law (in itself multi-layered and multiform), constitutional law, dynastic laws of succession, and feudal law.Footnote 27 Dhondt's study showcases this legal pluralism in operation. What he presents as diversity in ‘expressions characterizing the legal language’Footnote 28 (treaty law, custom, lois fondamentales, feudal law, Roman law, canon law) was utilized by diplomats to get their way. French and British envoys, for instance, used the superiority of international treaties vis-à-vis domestic norms to stabilize international relations. The Peace of Utrecht had established the principle that the succession to a throne could be settled by an international treaty. In true Utrecht fashion, international agreements neutralized several powers’ constitutional law and laws of succession. New international law was used to override or at least twist imperial lawFootnote 29 to reach subtle compromises over Italian affairs.
9. Conclusion
In conclusion, the reader willing to take up the challenge of diving into Balance of Power and Norm Hierarchy will encounter a rich and interesting case analyzed to gain an understanding of how law and legal reasoning influenced and were influenced by diplomatic practice. As co-operation between legal history, diplomatic history and empirical study of international law, Dhondt's type of research deserves to be followed by similar ones into other historical cases. Dhondt might still be leaning too much on the side of history to reach the full potential of an approach to international law's past that is more social sciences oriented; however, such an approach does promise much more insight into how international law operates in practice. In that sense, Balance of Power and Norm Hierarchy is a valuable example of a disciplinary merger still in its infancy.
