2. International law's shifting relationship with its own past

A plausible interpretation of the intellectual sources of the historic turn in international law is offered by Martti Koskenniemi by reference to the different ages or phases traversed by the international legal field as a scholarly discipline.Footnote ¹⁴ Thus, for this author, from its ‘rise’ (marked by the emergence of international law as a specialized profession and a branch of studies with chair at universities in the third quarter of the nineteenth century) until its ‘fall’Footnote ¹⁵ (with the gradual taking over of the cosmopolitan project by a functionally oriented generation after the collapse of the interwar order), international law's ‘self-understanding was historically informed’.Footnote ¹⁶ Indeed, as shown by David Kennedy's examination of ‘the ex-post reconstruction of a classic doctrinal system’ which is one that took the form of ‘a modern project of renewal through recollection’,Footnote ¹⁷ international law was ‘still during the interwar era . . . understood and examined in intensely historical terms’.Footnote ¹⁸ This historical self-understanding, which involved ‘aggressive historical interpretations of the pre-1900 “classics” and a categorization of publicists as either “positivists” or “naturalists”’Footnote ¹⁹ had, in its turn, emerged to respond to the challenge to ‘the possibility of law in a world of politics’Footnote ²⁰ embodied in the ‘international lawyers’ nineteenth century memory’.Footnote ²¹ Coincidentally with the post-Second World War turn to eclectic pragmatism in international law which went hand in hand with the ‘colonization of the profession by imperial policy agendas’,Footnote ²² historical studies in international law were, however, to follow the fate of ‘the flight from theory’Footnote ²³ understood as a disciplinary rejection of further inquiry into this ‘classic doctrinal synthesis’. The ensuing relative abandonment of historical studiesFootnote ²⁴ was, furthermore, fostered by the increasing specialization of the discipline that accompanied the proliferation of international institutions during the first decade of the Cold War, as – it is argued – ‘for a functionally oriented generation, the past offered many problems, and few solutions’.Footnote ²⁵ Against the sketched backdrop of the transitional interwar-post-Second World War period, the post-Cold War interest in international law's history is portrayed by Koskenniemi as the consequence of two fundamental triggering factors.Footnote ²⁶ The first of them is identified with a ‘sense of an increased political possibility connected with the end of the Cold War’.Footnote ²⁷ This has led, according to Koskenniemi, to ‘two opposite interpretations of the situation of today's international law to its past’:Footnote ²⁸ one a ‘narrative of continuation’, the other ‘a narrative of a wholesale break’.Footnote ²⁹ The second factor contributing to the re-emergence of historical studies is, on the other hand, explained as having ‘undoubtedly been the breakdown of the modernist frame of politics that used to provide a rather optimistic and, above all, universalistically inclined interpretation of the international world’.Footnote ³⁰ A postmodern outlook ‘does not subscribe to the meta-narratives that provided coherence and direction to historical writing in the past’ and, thus, from such a perspective, it seems urgent to ‘reinterpret the past in terms of “genealogies” that link the problems of a juggernaut-like modernity to choices made in the past and not to some inexorably constraining laws’.Footnote ³¹

Filling this basically referred two-tiered explanatory frameworkFootnote ³² for the ‘historiographical turn’Footnote ³³ of the discipline on a newly globalized post-Cold War setting, at least two general doctrinal ‘moods’ – one of optimism (which is, at this turn, respectively divided into both a confident and a diffident relationship towards the past) and one of anxiety – have been consonantly distinguished.Footnote ³⁴ One does find identified as exponent of the first element of this optimistic dyad a doctrinal momentum which shares the ‘sense’ of optimism triggered by the possibility of resumption of the liberal internationalist project of the twentieth century. This is ‘expressed both in the emergence of new discourses predicated upon the evolution of international law . . . and the revitalization of projects from earlier eras’.Footnote ³⁵ Examples of this first type of abounding confident optimism might be, respectively, located in some of the rule-oriented variants of the international legal persuasion expressly associated with the domestic dimension of emergence of the right to democratic governance.Footnote ³⁶ Also mirroring the multifaceted impact on international legal scholarship of the revival of an international law's political project (one which is much informed by the natural teleology animating Kant's 1784 The Idea for Universal History with a Cosmopolitan Purpose Footnote ³⁷ in a period that has, correspondingly, been characterized as a ‘post-realist age’),Footnote ³⁸ it is the contemporary more assertive attitude on the constitutional character of the substantive principles of international law displayed by the defined as the ‘enlightened positivist’Footnote ³⁹ ‘school of the international community’.Footnote ⁴⁰ The latter trend has been characterized as the embodiment of a ‘weak reading of constitutionalism’Footnote ⁴¹ within the in-vogue multifaceted generic strengthening of international legal constitutionalist rhetoric – especially from European doctrinal quarters – in the aftermath of the Iraq war. In advancing a transposition to it of Berman's key-underlying analysis, this constitutionalist renewal would go hand in hand with the attempt at reconstructing the post-1989 project of an international community where ‘power and principle’ (p. 93) might have found a new legitimacy. This period which is – in Berman's view – falsely retrospectively interpreted as a ‘golden era’ (p. 92), would have been dashed by the first ‘neo-conservative interregnum’Footnote ⁴² of the twenty-first century in US foreign policy. What is defined as the Bush administration's ‘legitimacy of contestation’ (p. 112) vis-à-vis international law is, in turn, portrayed as reactive to the challenges to the ‘legitimacy of statute’ (p. 101) and the legitimacy of ‘coherence’ (p. 108) on the international system posed by O. Bin Laden. The author does, furthermore, interestingly, contrast the latter challenge with the delegitimizing-oriented strategies historically posed to international law by both fascism and communism (p. 102). It is, precisely, this type of recurrent self-legitimatizing-oriented international legal strategy of ‘renewal and restatement’ (p. 51) exemplified, at present, by the constitutional rhetoric in international legal writing which Berman makes in the present book the object of an untiringly and systematically innovative challenge ultimately grounded on the patient disclosing of a hidden history of international law.

Developed within an international framework unburdened with the structural conditions of the bipolar world, what was previously referred to as the post-Cold War mood of optimism behind the historic turn in international law does correspond to ‘a voice of stability, associated vaguely with the past’. As such, it is confronted with a second type of optimism portrayed as ‘an updated or renewing vision which is more complex, relevant, up-to-date’.Footnote ⁴³ The second variant within the ‘optimist’ strand, an offspring of the same post-Cold War ‘feeling of increased political possibility’, is inspired by a more acutely perceived sense of novelty in order to open itself as ‘an exploratory space to new endeavours unburdened by the restraints of a traditional law that insisted upon respect from sovereignty or domestic jurisdiction’.Footnote ⁴⁴ With ‘the emergence of human rights law as the focal point of liberal legal reform in the international field’Footnote ⁴⁵ in its cross hairs, it does result, among other things, in different re-readings of the principle of sovereign equality and non-intervention. The democratic debate does, again, allow the exemplifying of this ‘narrative of a wholesale break towards the past’Footnote ⁴⁶ by reference to certain of its normative-oriented variants as for example the Kantian theory of international law.Footnote ⁴⁷ Also reflective of it is the spurring of scholarly constructions based on the phenomenon of international self-contained regimesFootnote ⁴⁸ within the debate on international legal constitutionalism. The doctrinal variants filling out each of these dychotomical doctrinal attitudes are multiple, and might be found, especially as far as the variations of innovative breaking with the past are concerned, in fierce opposition to each other. Reflective of the latter characterization is Kennedy's portrayal of the post-Cold War field as one

The confronting relationship of these container-like doctrinal ‘moods’ of optimism with each other has contributed to feed the historical turn in international law, which does emerge as a background reflection of the tensions animating the contemporary state of the art. A brilliant echo by Berman of this problematic inaugurates the present book under the innovative form of a doctrinal dialogue between two characters, a ‘restater-renewer’ and a ‘genealogist’, who are joined by the figure of the ‘formalist-renewer’ in a new Epilogue.Footnote ⁵⁰

Along the first optimistic doctrinal dichotomy, a second mood of ‘anxiety’ has been broadly identified to operate behind the historical turn in international law. It has been identified with a postmodernist malaise with the post-Cold War classically oriented confident ‘narrative of continuation’ with the past.Footnote ⁵¹ From this methodological perspective, the previous engagements are characterized as being predominantly of an instrumentally marked synchronic character that presents the history of international law in terms of an enlightened narrative of progress. According to this view, they amount to an approach based on a thin normative historicizing linked to what Berman depicts as ‘an ever-advancing dialectic of renewal and restatement’ (p. 51) at the service of a teleologically oriented grand narrative ideally inspired by the overarching goal of advancing the rule of law on the international plane in a manner responsive to the needs of the self, posited as an everlasting problem facing the discipline: how ‘to construct a social order among sovereign states’.Footnote ⁵² The terminologically posited association between a doctrinal mood of ‘anxiety’ and the postmodernist discomfort with underlying meta-narratives should not, however, be uniquely equated to correspond to a ‘pervasive sense of uncertainty and turmoil’ as a reflection of a supposedly automatic, implicitly historically recurrent, turn to the history of international law ‘in all moments of momentous political change’.Footnote ⁵³ While ‘a sense of anxiety can be perceived in recent works concerning the rise of unilateralism, the persistence of hegemonic influence, and a re-emergence of the rhetoric of Great Powers’,Footnote ⁵⁴ it might be convenient to not equate completely this so-called ‘anxiety’ with a differentiated doctrinal mood of critical ‘reflexivity’ and the new approaches in the history of international lawFootnote ⁵⁵ brought by them. It is within this latter doctrinal box that Berman's work finds its place. Indeed, Berman's work constitutes one of the historically oriented fundamental cornerstones of a multifaceted epistemologically orchestrated projectFootnote ⁵⁶ receptive of very diverse and rich influences that, while active from the mid-1980s, have truly gained momentum in the aftermath of the Cold War onwards. It is within this category that – with its own scholarly innovative characteristics – Nathaniel Berman's work should be introductorily framed in a scholarly field where the ‘historical turn’ as a site of struggle and promised emancipation has been announced ‘to be here to stay’.Footnote ⁵⁷

3. The forgotten genealogies of international law

The term ‘genealogy’ in historical studies is contemporarily, perhaps, mostly associated with the work of Michel Foucault,Footnote ⁵⁸ whose tsunami-like impact on the social sciences and humanities in making space for new paths of critical inquiryFootnote ⁵⁹ projects itself through a multiple array of authors. Among the authors influenced by Foucault's historical method is P. Veyne, whose conception of history is as ‘a place of constant discontinuities’ (p. 35). Jouannet, who had previously distinguished ‘the historical genealogy of the author from the rationalist genealogy which had inspired Marxism and a part of the Third World’ (p. 34), affiliates in comparative terms Berman's historical approach to that of Veyne. She points, nonetheless, to differences between Veyne and Berman because in the latter's work there ‘remains always present, through the discontinuities, the existence of an unconscious discursive structure’ (p. 35). This background double-axis in Berman's historical work is explored in Jouannet's introduction by reference to the intertwined elements of the ‘culture and the ambivalent dynamics of the unconscious’ (p. 35). Indeed, the long shadow of Foucault as one of the influences behind the author's genealogical approach to international law becomes already paramount in the book's first chapter, which is designed to offer a ‘general view of my historical and theoretical project’ (p. 48). In it, Berman presents a definition of the true object of his genealogical approach to international law, which is the examination of ‘the appropriation and re-appropriation of law by the heterogeneous forms of power as well as the constitution and reconstitution of power by the heterogeneous forms of law’ (p. 88). This perspective allows the author, in line with the postmodern distrust of meta-narratives to which he adheres, to define his international legal genealogy as one that ‘rejects the account of international legal history as an ever-advancing dialectic of restatement and renewal’ (p. 51), or, if preferred, to present his genealogy as an approach that ‘rejects linear accounts of the origins and progress of the ‘international legal community’ (p. 52). Naturally, the importance of ‘discontinuity’ as a working concept for the historian and the stress on a form of writing which is rooted in the analysis of history as discourse sets itself in the way of any doctrinal attempt at using ‘continuous history’ as a ‘reassurance to subjectivity’ for international law. This alone might suffice to evidence an immediate fault-line between a genealogical historical approach and other alternative visions of the relationship between international law and its history previously exemplified in connection with the feeling of ‘increased political possibility’ brought about by the end of the Cold War. Such a dividing gap becomes even more patent if the structuralist faith in the analysis of history as discourse is replaced by a post-structuralist stress on relations of power over relations of meaning.Footnote ⁶⁰ The latter allows an interpretation, extrapolated to the field of the history of international law, according to which ‘the purpose of history, guided by genealogy, is not to discover the roots of our identity, but to commit itself to its dissipation’.Footnote ⁶¹

The influence of the structuring power of discourse and the complexity of the relations between power, truth, and law pace Foucault remains one of the distinguishing generational features of the theoretical ‘toolkit’ of what has been labelled the second generation of critical legal studies (CLS) scholarship.Footnote ⁶² In order to better interpret Jouannet's implicit reference to an underlying structuralist drive in Berman's work,Footnote ⁶³ it should be briefly recalled how, as a fruit of his scholarly critical generation, the author's work does integrate a number of characteristics proper to the so-called early critical legal studies scholarship. This connection does include the linkage of CLS to ‘the frenzied locust eaters’ generation of American legal realism in the 1930s.Footnote ⁶⁴ As is widely knownFootnote ⁶⁵ and will here be sketched almost in telegraphic terms, a number of features of the radical strand of American legal realismFootnote ⁶⁶ were retaken by CLS scholars from the mid-1970s on in its fight against post-realist legal theory.Footnote ⁶⁷ These realist insights were, in their turn, developed, on a more radical transformative political basis, under the influx of a general epochal mood of ‘expanding eclecticism’Footnote ⁶⁸ in the reappraising of the methods of legal scholarship. The latter methodological turn benefited especially from the influence of the Frankfurt School and its ‘critical theory’ and from the new structuralist lenses provided by anthropological and psychoanalytical cognitive insights. Although diverse in their location of the core of a binary ‘deeper level’ (whether ideology/false consciousness or langue) which ‘reproduces or structures both doctrines and theory’Footnote ⁶⁹ at the surface level or parole, the common orientation of these two supplementary critical traditions at displacing the ‘relationship between theory and practice with which legal scholars are familiar’Footnote ⁷⁰ was key for CLS to come to grips with the ‘fundamental contradiction’. This well-known ‘fundamental contradiction’ (between self and other, individuality and community) was originally examined in the legal field by Duncan Kennedy.Footnote ⁷¹ It would subsequently be extrapolated to international legal doctrine under the familiar formula of form of ‘apology and utopia’,Footnote ⁷² as this does conform to and operate within the structure of international legal argument. Oriented at demonstrating how legal doctrine, as a manifestation of the ideology of liberalism, contributed to an unjust social structure, it will be, however, the attack on the implicit underlying ‘foundationalism’ (understood as the pretensionFootnote ⁷³ of having found the ‘true, essential’ structure of legal doctrine) what deconstruction as a post-structuralist technique of analysis pace what is perceived as ‘Derrida's most enduring philosophical legacy today’ (otherwise ‘the theory that all binary oppositions are essentially unstable’Footnote ⁷⁴ – or différence) will make the distinguishing mark of the post-structuralist challenge. It is this trans-disciplinary post-structuralist challenge, understood as a ‘response to the difficulties encountered by the synchronic of the structuralist tradition and the dialectics of critical theory’,Footnote ⁷⁵ that determines the otherwise admittedly blurred dividing line between the first and second evolutionarily oriented generations of CLS scholarship.Footnote ⁷⁶ It does, furthermore, allow one to locate, from the onset, Berman's ‘genealogical, structuralist and deconstructivist approach’ (p. 12) to international law within the referential axis provided by the ‘post-modern mind’.Footnote ⁷⁷ Jouannet equally does not fail, early in her enlightening critical introduction, to point to the identification of the author's ‘original appartenance’ (p. 12) to the Harvard Law School's cradle of critical legal studies.Footnote ⁷⁸

Once Berman's original embrace of CLSFootnote ⁷⁹ and, by ricochet, as an author generationally subject to the influences of the debates operating behind the evolutionary path of the movement, has been, preliminarily, ascertained, it might be relevant (so as to minimally introduce the rich array of influences operating behind Berman's broadly interdisciplinary work) to refer back to the primary self-acknowledged legacy of the American legal realism pace CLS in Berman's opus. Doing so will help to recall, in passing, the dividing line between the common ground shared by the different variants of inheritors of ‘American Legal Realism and its critique of formal dogmatic distinctions’ (p. 60) and the flagged generational legal American academic emblem of ‘we are all legal realists now’Footnote ⁸⁰ vis-à-vis what the author addresses as a stereotypical view in American quarters that ignores the ‘modernist’ strands of what is, otherwise, commonly perceived as the rigid formalism of Continental European international lawyers (p. 86). More interesting, however, for the understanding of Berman's work than the recurrently examined divide between the European Continental and American international legal traditions,Footnote ⁸¹ is to note how the CLS kinship to American legal realismFootnote ⁸² is commonly located in their ‘adoption of the realists’ twin orientations toward an iconoclastic historiography and a rigorous analytic jurisprudence’.Footnote ⁸³ Echoes of this linkageFootnote ⁸⁴ lie behind the author's appraisal of the building role of ‘local, provisional successes’ in establishing ‘the identity of internationalism as a whole, not as that of a system with a fixed ideology, but as a work-in-progress, subject to constant revision through situational engagement’ (p. 99). While noting the oriented instrumentality of this very ‘resurrecting [of] the critical strands in pre-World War I legal progressive thought and legal realism, so that we could claim a tradition for our highly controversial positions in the domestic legal debate while at the same time finding a place in the larger development’,Footnote ⁸⁵ this linkage is examinedFootnote ⁸⁶ by Berman himself in terms of the projection of ‘legal realism as an actual modernist precursor’ of CLS and of the latter ‘as a transposition to law of the modernist revolt in culture’.Footnote ⁸⁷ In doing so, the author stresses the ‘surrealism or revolution’Footnote ⁸⁸ dichotomy and the politico-intellectual historical relationship of both terms as intrinsically linked to the genealogy of ‘American critical legalism’ and its ‘utter faith and utter distrust in law’Footnote ⁸⁹ grounded on the distinction pace Duncan Kennedy of ‘left/modernist–postmodernist’.

This ‘left/mpm’ distinction stresses the existence of two strands of critical legal studies: ‘the first strand focuses on left-wing political action (‘changing the existing system of social hierarchy’); the second strand focuses on the ‘modernist/postmodernist’ cultural rebellion (‘achieving transcendent aesthetic/emotional/intellectual experiences at the margins or in the interstices of a disrupted rational grid’).Footnote ⁹⁰ Berman reclaims the latter tradition as a non-lego-theoretical parallel background influential streak in the form of a strong cultural, psychoanalytical, and artistic (Robert Redslob, Breton, Freud, Picasso) modernist influence in his work as a historian. Noting that Berman's ‘interest in cultural modernism should be viewed as a part of a challenge to the dominant approaches to legal history, particular international legal history’, Footnote ⁹¹ one should, therefore, not overstate the centrality of the history of legal theory in his work. A parallel cognitive space for approaching Berman's perspective as one guided by a broader cultural-history approach is thus warranted. This should not lead one to confound the author's opus – as he himself notes – with the work of ‘traditional practitioners of American “law and humanities”’.Footnote ⁹² As with other authors of the late 1980s and early 1990s CLS generation, the author's main focus of analysis is the quest to know what the nature of contemporary legal materials is. This leads, by extension, to an analysis of where the origins of the contemporary structure of legal pragmatism lie. While one can, indeed, appreciate a greater generational penetration of interdisciplinary materials (less now in the footnotes as intellectual background for the legally oriented analysis of the 1970s and 1980s CLS writings) in the main text, Berman's method is not one oriented ‘at enrich(ing) the law with cultural sophistication’Footnote ⁹³ as the traditional practitioners of American ‘law and humanities’. Instead, his methodology is designed to bring to the fore a study of history as method in order the better to work out the consciousness of the discipline and be thus able to warn about the dangers of authoritarianism looming ahead in the new post-Cold War era. This precision acknowledged, one might now turn back to Berman's scholarly leaning towards the historical relationship between international law and nationalism and colonialism as one that integrates the already previously referred to disjunctive between ‘surrealism or revolution’. In doing so, his work appears to integrate equally the emergence of the (post-)poststructuralist internal CLS debate between the possibility of coexistence of hypercritical postmodernist attitudes with the programmatic aspirations of the multicultural activists.Footnote ⁹⁴ Under the influence of a new type of ‘postmodern identity politics’, the latter have been evolving into different branches and subgroups also with ramifications in international law. This postmodern identity politics is one which owes much to the inclusively liberating effect of ‘the science of writing, or grammatology’,Footnote ⁹⁵ and its denunciation of the logocentric bias – otherwise, the privileging of one concept over another – of Western thought over its legacy.Footnote ⁹⁶

Once having in a very introductory fashion, therefore, ascertained some of the generational echoes prima facie present in the author's work, one can now reach out for an identification of Berman within the context of contemporary international legal doctrine. In it, the author appears as a leading exponent of the very avant-garde of the gradual creative extrapolation of a new critical legal demystifying multifaceted methodology and its accompanying radical political emancipatory sensibility to international law since the mid-1980s.Footnote ⁹⁷ Fundamental in both fostering and shaping the contours of the historical turn in international law, the resulting multifaceted doctrinal trend which is known, among other doctrinal labels, as New Approaches to International Law (NAIL),Footnote ⁹⁸ is, ultimately, oriented at challenging ‘complacency by increasing self-consciousness in the discipline and making each scholar aware of the problematic character of its political assumptions’.Footnote ⁹⁹ Having already sown deeply the seeds of its own critical tradition in the history of the discipline in the hinge decades of the twentieth and twenty-first centuries it is, as such, an influential tradition, increasingly systematically studied (as exemplified by the Doctrine(s) collection)Footnote ¹⁰⁰ for its own past and contemporary influential analytical achievements in the examination of the international legal order. Under the influence of a new type of postmodern identity politics,Footnote ¹⁰¹ the broad family of critical legal studies, which has evolved into different branches and subgroups also with ramifications in international law,Footnote ¹⁰² is progressively the object of a more detailed scholarly scrutiny beyond the sphere of its own acolytes. It is so, among other factors, for the promise it holds of a doctrinal blueprint adapted to a new international relations stage advancing unstoppably towards a multipolar age. This latter aspect is direly relevant to such an author as Berman, who for more than two decades has made the historical relationship between nationalism, colonialism, and international law the locus of his coherently elaborated scholarship, as shown by the selection of essays included in this compilation. In doing so, he has contributed to putting forward the innovative methodology of a genealogical approach to international law which, greatly influenced by post-colonial studies, allows him to frame his workFootnote ¹⁰³ in close affiliation with other works produced in international law under the banner of the Third World Approaches to International Law of the second generation or TWAIL II,Footnote ¹⁰⁴ and their insistence on the as yet insufficient historicizing of the colonial past of international law. In the usual TWAIL II format, Berman, indeed, does not fail occasionallyFootnote ¹⁰⁵ to engage in a critical retrospective rereading of the positions adopted by Third World scholars of earlier generations (pp. 311–16),Footnote ¹⁰⁶ and does make central to his work the examination of the recurrence, ‘at every celebration of a new international law, (at) every reinvention of an international community’, of the production of a Derridean brisure – understood as an articulation of continuity and discontinuityFootnote ¹⁰⁷ – ‘between the intra-European and colonial faces of the post-cold war world’ (p. 50). While prima facie slightly puzzling for an international lawyer not familiar with a certain streak of the postcolonial critical literary theory and the field of cultural studies, it is the recurrence of scientific psychoanalytical jargon and explanatory accounts of the use they are put to in the author's work in the latter connection. A relevant example, along with many others, of this practice is the use of the notion of a ‘back-formation’Footnote ¹⁰⁸ applied to the manner in which the international community has recurrently reinvented its identity by reference to the projection of the portrait of a needing ‘Other’ placed at its periphery. The latter is a key recurrent subject, as the author shows in a copious bibliography – by reference to his own work and that of others of his fellow travellers in TWAIL's scholarship. Placed in this context, Berman's book can be characterized as one of the most enduring contributions by any contemporary international lawyer to the question of knowing what we are talking about when we talk about the international community in international law.

International law is, furthermore, characterized by the author as a discipline in which proclaimed boundaries are ‘a terrain for struggle for identity-politics’ (p. 76). Berman's engagement with the latter is shown by reference to the background fundamental object of his theoretical and historical critical analysis: the recurrent reinvention of the identity of the international community in its quest to legitimate itself, and the correlative genealogist duty to ‘disentangle . . . the variety of temporal lines . . . of “international legal history”’ (p. 81). His examination is supported by the unveiling of a number of hidden genealogies ‘of the international society’ (p. 77) as the one offered by feminist critical legal theorists. Acknowledged echoes of related post-colonial theory and cultural studies, furthermore, often find their way correlatively into his ‘orientalized’ analysis of what is referred to as ‘the polymorphousness of imperial desire’ (p. 80) in the treatment of the colonized world. By the latter expression, Berman refers to the way in which normative positions are informed by ‘a variety of libidinal desires and a variety of configurations of gender’.Footnote ¹⁰⁹ If this mention alone allows the author to link with his parallel definition of the genealogy of international law as one which searches for its affiliation ‘in violence, power, money, culture, sex’ (p. 50), it is also one which might suffice to evidence the broadly interdisciplinary character of Berman's intellectual production. Indeed, aware of ‘the place of narration and the centrality of texts in the practice of imperialism’,Footnote ¹¹⁰ Berman's hermeneutic journey to the unearthing of the metaphysical grounding and philosophical underlying positions behind the international legal history of nationalism and colonialism involves a comprehensive innovative attempt at systematically piercing the cultural and psychoanalytical substratum of international law through an in-depth analysis of carefully selected historical texts. Such interdisciplinarity involves the elevation of the critical legal theory tradition of ‘productively misreading the texts of international law’ in order for them ‘to mean differently’Footnote ¹¹¹ at levels not previously pursued by any author with such a clearly determined methodological design regarding international legal doctrine. The objective at the core of Berman's work as historian is to ‘identify the deep-structure’ of what he defines as ‘international legal Modernism’ and its correlate ‘global vision of a new international law totally grounded on its relationship with nationalism’ (p. 139), as this remains, by reproducing colonial impulses, the insurmountable horizon of the post-1989 long decade of international interventions dangerously interpreted, in Berman's view, as a ‘a golden age’ where one could see realized the ‘dream of a final integration of power by principle’ (p. 101). As the author himself explains, this hermeneutic method developed ‘through close critical readings of particular texts’ is the only one able to expose the ‘paradoxical nature of modernist discourse and the dynamic principle inspiring it’. The latter is one which ‘should not be understood as a logical thesis but as a paradoxical cultural construct that took a variety of forms in different texts’ (p. 148).

Berman's understanding of the conforming identity relationship of international law with nationalism as well as its intrinsic ties with colonialism undergirds his interdisciplinary method as one always put at the service of a goal the interpretative key of which is the analysis of the search for a structuralist drive in the bulk of Berman's critical historical orientation. This orientation is part and parcel, as already noted, of a broader contemporary critical effort to ‘other’ international law as conventionally understood. Otherwise, to borrow from the terms of Edward Said,Footnote ¹¹² the author's work can also be interpreted as an emancipatorily oriented exercise in a ‘contrapuntal writing back’ adapted to the specificities of the international legal discourse or, if preferred, an invitation to the invisible college either to adopt as its own a raised standard of self-consciousness vis-à-vis its own colonial past, or to remain ‘foreign to itself’ in a denial that condemns it to bite and chew its own langue. Such a mention of the familiar term of langue or structure profonde is naturally to be understood as beyond structuralism itself, otherwise as a post-structuralistFootnote ¹¹³ ‘unconscious discursive structure’ in search of which Berman's original method of historical analysis must be found. As Jouannet notes, it is through the intertwined lenses of ‘culture and the ambivalent dynamics of the unconscious’ (p. 35) that this search should proceed. These are the methodological tools used to uncover ‘the underlying framework of assumptions’ (p. 134) behind the ‘international legal Modernism’ of the interwar years which, in Berman's perspective, ‘bequeathed us the very framework within which we continue to think about international law's relationship to nationalism’ (p. 134).

4. The interwar period's international legal modernism and the post-1989 ‘long decade’

The historical research core of Berman's work attempts – through a myriad of historical texts, in great depth and minute detail – to reveal the conforming ‘paradoxical “alliance” of the “experimental” and the “primitive” or, if preferred, between “avant-garde internationalization” and passionate nationalist clamouring’ (p. 138). This alliance is – according to the author's appraisal – the constitutive fabric of the currently insurmountable framework of the ‘international legal Modernism’Footnote ¹¹⁴ of the interwar years. His method of historical-comparative analysis is consonant with the self-admittedly only recognizable common feature of the per definitionem heterogeneous and eclectic NAIL scholarship: that of ‘escaping the liberal triumphalism of the post-Cold War discipline’.Footnote ¹¹⁵ The author regularly stresses that the underlying target of its historical research is that of being an accompanying counterpoint to the debates that have been taking place during the post-Cold War long decade. This period – defined early on as ‘a time of renewed historical consciousness’Footnote ¹¹⁶ – is portrayed, in one of the latest published essays (2005) of the book, as one perceived by those who indulge themselves in a ‘retrospective illusion’ (Srebrenica or Rwanda notwithstanding (p. 95)), as ‘a golden age during which internationalism had “status” and “coherence”’ (p. 94). Having devoted his work since the fall of the Berlin Wall to warning about the dangers, the ‘temptations and blind spots’ of a not yet transcended international legal modernism, Berman's post-2003 Iraq war work brings the early 1990s’ critical ‘anti-end-of-history thesis’ momentum to regain a twenty-first-century mature topicality by convincingly following up and vindicating the core of his previous lego-historical thesis. The author does so by linking the historical ‘internationalists'’ efforts at dynamically achieving and re-achieving legitimacy (which he defines as an ‘infinite task which asks to be always re-accomplished’ (p. 99)) to the new post-Iraq self-legitimitating reconstructive designFootnote ¹¹⁷ lurking behind this internationalist nostalgia of ‘an international community that would finally have integrated power and principle’ (p. 94).

In the four long chapters which account for the central part of the present compilation, Berman offers a detailed historical reconstruction of a ‘global vision of a new international law totally grounded on its relationship with nationalism’ (p. 139) by reference to the interwar years’ actual debates on ‘the conditions of legitimacy for the deployment of the internationalist power’ (p. 460). This is set in parallel to the successive events and debates of the post-Cold War age (from Bosnia to Kosovo or Jerusalem) in order to prove the ‘long post-Cold War decade [to be] both historically inaccurate and theoretically flawed’ (p. 96). Berman's historical reversed mirror exposes ‘the quandaries of the robust internationalism of the long post-1989 decade’ (p. 116) by shedding ‘critical light on both the implicit assumptions and specific proposals of our current international legal pragmatism’ (p. 134). His seminal thesis is carved out through recourse to writers who are ‘not necessarily the ones whose names have remained the most familiar from the interwar period’ (p. 139), but whose texts made explicit and ‘articulated the intellectual break marked by the Modernist tendency’ of the Versailles system’ (p. 140) ‘that continues to shape international law's relationship to nationalism’ (p. 139). Such comprehensive historical researchFootnote ¹¹⁸ is oriented at demonstrating that in the same manner as in other domains where orthodoxies were renewed by ‘an array of early twentieth-century movements for cultural renewal’ (p. 139), the ‘Modernist’ revolution also brought into international law ‘a paradoxical “alliance” between turbulent nationalist passion and a newly autonomous international law vis-à-vis states’ (p. 139). The latter is depicted as a legal revolution which ‘went beyond merely replacing one founding principle with another’, but ‘rather, [it] transformed the very relationship of international law to its foundations’ (p. 140) by ‘bypassing the dichotomy of Statist Positivism and Liberal Nationalism’ (p. 144). The author devotes a great deal of effort to illuminating the journey of this ‘paradoxical alliance’ emerging from the ‘Modernist matrix’ (p. 145) as it appears reflected in legal doctrines such as self-determination and the protection of minorities or in the design of complete and detailed regimes for internationalized regions such as Danzig, the Saar, or Upper Silesia, as well as the mandated territories (p. 434). Ultimately Berman deconstructs the historically fluctuating relationship between international law and both nationalism and colonialism as one rooted in what Jouannet terms ‘a fundamental anthropological and psychoanalytical ambivalence constitutive of the human identity’ (p. 15).

The prism of international legal modernism – a version as well as a creative site for the general phenomenon of ‘cultural modernism’ (p. 147) of the early twentieth centuryFootnote ¹¹⁹ – allows the author to look into the ‘crater filled with flames and smoke’ as RedslobFootnote ¹²⁰ described the phenomenon of nationalism. This last is characterized as ‘a new domain for an autonomous international law, that of the “meta-juridical”’ conceived as a field not of ‘a positivist science, but (of) a new art’ (p. 150) practised by a breadth of self-admittedly anti-formalist and anti-foundationalist méta-jurists. Berman remains, however, always ambivalent about the modernist international legal framework and the resulting ‘disjunctive juxtaposition’ of the two extremes – the primitive and the experimental – with its conforming paradoxical alliance of ‘radical discontinuity and reciprocal facilitation’,Footnote ¹²¹ otherwise one which ‘would facilitate each of the “extremes” precisely through their polar disparity’.Footnote ¹²² On the one hand, the author does not hide his fascination with the efforts of some interwar international legal writers in trying to do in international law something closely analogous to what, for example, Pablo Picasso was doing in the visual arts: an attack on formalism, a fascination with the primitive, an aspiration to disciplinary virtuosity and innovation, and a will-to-power to co-ordinate a foundationless ensemble through the artistic genius of the master-innovator.Footnote ¹²³ On the other hand, however, his detailed knowledge of the effects of the ensuing international legal modernist performanceFootnote ¹²⁴ drives him to be aware of its dangers, to look critically into its temptations and blind spots, and to denounce the different moves in the unfolding history of the tradition of what he defines as ‘liberal colonialism’ (p. 424). In the present selected compilation of Berman's work, the latter is examined by reference to exemplary cases including the strategies adopted by the modernist paradoxical alliance and its contrast to the posture of localization exemplified by the Spanish Civil War (p. 238). The author does equally examine the evolution of the modernist construction of the relation between the internationalist reason and the nationalist passion, as this suffers a ‘wanted mutation’ (p. 321–2) under the late influence of a 1930s ‘realist’ revisionist tendency in the form of a ‘pragmatic revisionism’ and ‘nationalist revisionism’ (p. 325) through the in-depth examination of the debates surrounding the 1935 Italian invasion of Ethiopia and the 1938 German partition of Czechoslovakia. In what constitutes a defining feature of Berman's intellectual production, each of these historical examples is juxtaposed to the 1990s scene, thus allowing Berman to find a similar crisis of the internationalist legal discourse in a modernist alliance of the mid-1990s that mirrors the hopes of the Versailles system and its ‘legal unifying vision’ (p. 323).

Faithful to an understanding of international law as a ‘culturally constructive discipline and practice’ (p. 321), the author's final goal is to ‘show that international law as discursive practice shapes its own change, its own mutations . . . and then presents them as a new external reality’ (p. 323). Seeking to thwart ‘the tendency to see legal change solely as reactive, instead of as transforming the cultural constructions international law projects discursively and politically’ (p. 323), the author's underlying key counterdisciplinary spirit equally permeates the interpretative prism of ‘the tendency to ambivalence’ (p. 432) engrained in international law's relationship to its own colonial past. This referred relationship is presented as an ambivalence which acts as a ‘technology of power’ understood as the identification in international legal doctrines and regimes of the ‘persistence of certain discursive structures and practices of structures which have been developing for a century (p. 431). These ‘forms of ambivalence regarding the line of partition between the Western and non-Western world’ as emerging from the same ‘modernist matrix’ are essential in Berman's work for ‘the justification of the legal structuring of colonialism’ (p. 437). The hermeneutic journey and the role played by nationalism, as well as the perception of the colonial domination and anti-colonial resistance in the construction of legal doctrines and regimes by theorists and lawyers alike, remain in Berman's appraisal not just limited to a conceptual system or, alternatively, one susceptible to capture by the ‘exegetical or logic-conceptual analysis of legal norms’ (p. 29). Instead, the latter are portrayed as complex passions which constitute the psycho-cultural and historical fabric of law.

Thanks to this characterization they do become the intellectual terrain for the unveiling role of psychoanalytical analysis in representing international law's ambivalent unconscious in a unique interdisciplinary encounter pace explicitly explained insights engrained in Berman's texts. These psychological insights comprise (to name a few) Sigmund Freud and his studies on the antithetical sense of primitive words (p. 399), Julia Kristeva and her conceptualization of the illusory character of the human identity (p. 425), or Melanie Klein and the role of the mechanism of cleavage in the construction of identity (p. 438). It is this shadow or back-face of international law – whether in its negative mode of denial or as a phantasmagoric structure of lawFootnote ¹²⁵ – which holds the key to penetrating Berman's explanation of the historical genealogy of certain forms of anti-formalist power, which includes an examination of their legacy of colonial echoes in response to local conflicts which remain embedded in ‘the more realist exercises of contemporary internationalism’ (p. 425). These practices are limited (and here lies, precisely, the topicality of Berman's work as part and parcel of the historical turn in international law) by the too-familiar landscape offered by