2. History and the critique of international law

History has been an important resource for critical international law scholarship. While the ‘first generation’ of scholars later identified as belonging to the broad school of Third World Approaches to International Law (TWAIL) recognized the significance of history for critique, a rich second generation ‘TWAIL II’ literature has since developed this insight in a variety of ways.Footnote ¹¹ Though its ‘historically aware methodology’ is informed by other critical approaches,Footnote ¹² this literature has been an important stimulus for a broader ‘turn to history’ in international law. Most notably, historical analysis has been used to expose the role of the ideologies and practices of European imperialism in the making of international law.Footnote ¹³ Enquiries into international law’s imperial past and efforts to trace its continuing effects – the legacies of colonialism in particular – have unsettled traditional accounts of international law in terms of both content and approach. This has inspired a whole range of critical and revisionist historical studies of the discipline and its doctrines and practices.

Setting to one side the varying strengths and weaknesses of individual critical histories (and noting that not all historical revisionism is also critical), the recent burgeoning of historical studies of international law warrants further reflection on the question of whether and, if so, how and why history is a valuable mode of enquiry for scholars concerned to describe and explain as well as critique and change international law. It is significant in this regard that there has been considerable resistance to critical histories of international law from scholars working with what can be broadly described as a ‘doctrinal’ approach to international law.Footnote ¹⁴ Scepticism regarding the use and value of historical methods has also been expressed within critical international law scholarship.

Notwithstanding the extent to which the critical purchase of her own work results from its historical character, Anne Orford has been particularly vocal about the ‘limits of history’ as a means of critique.Footnote ¹⁵ Her comments on anachronism and what she terms ‘juridical thinking’ in connection with method in the study of international law past and present are of particular interest.Footnote ¹⁶ According to Orford, the ‘limits of history’ as a method for studying international law follow from the peculiarities of the way in which international law connects past and present and, as she puts it, makes ‘meaning’ move ‘across time and space’.Footnote ¹⁷ She emphasizes in particular the limits of the contextual approach to history associated with the ‘Cambridge School’ as a means of engaging with this distinctive dynamic of international legal thought.

It is notable that more traditional doctrinal scholars also appear to consider the unique way in which international law makes use of the past within international legal reasoning to limit the relevance of critical histories of international law. Their sense of the ‘limits of history’ differs in important respects from Orford’s, as does their response. Yet, common to both objections is the notion that international law’s use of the past in relation to the present is in some sense unique and resistant to history as critique.

The apparent facility with which doctrinal scholars and practitioners tend to ignore or set critical histories of international law aside is striking. It is often assumed and occasionally argued that these works are a distinctive endeavour that has no real bearing upon the task of the doctrinal lawyer.Footnote ¹⁸ Specifically, arguments about how things were in the past (e.g., what happened, how it was understood) by reference to a historian’s standards of evidence and interpretation are considered to have little or no bearing upon the key question of what the positive law is – a matter of legal sources and legal interpretation. The chief impact of critical histories (if any is acknowledged) is often taken to be a general challenge to idealistic accounts of international law as a progressive force for good. At the same time, these critical works are frequently disparaged on the basis that they do not present a better alternative. This familiar line of argument reflects a particular kind of expectation regarding the normativity of accounts of how the concepts and practices we have at present came to be the way that they are.

The point of Orford’s criticism is different. Orford recommends moving away from a mode of enquiry (history as a method) that she takes to unduly restrict the exploitation of the resources of the past in the interests of the present.Footnote ¹⁹ She suggests that the way in which international law itself brings together past and present has relatively untapped critical potential.Footnote ²⁰ Orford has proposed that an openly anachronistic kind of ‘juridical thinking’ rather than historical method may be a more fruitful means of conducting critical work on international law.Footnote ²¹ She is also concerned with the normativity of such critical work – how it might help us to answer the question ‘what are we to do now’.Footnote ²²

Both Orford’s account of the ‘limits of history’ for critical international law scholarship and the more familiar resistance of doctrinal lawyers and scholars to critical histories of international law point to the need for further reflection on (i) how international law relates past and present, and (ii) what this means for how we might use the study of international law’s past to say something about – and even alter – its present. The difficulty is that neither these objections to the historical critique of international law nor the critical histories that have so far been developed can be considered to have adequately considered how histories of international law might relate to the forms and uses of history within international law. This is, perhaps, the chief reason why critical histories of international law have failed to have the impact on current international legal thought and practice that certain of their insights justify. Crucially, this is not a consequence of the ‘limits of history’ for critical work on international law. Instead, historical enquiries have not gone far enough in recognizing the importance of history within international law when this is precisely what makes it vulnerable to critique from a historical perspective.

Instead of finding history wanting as a means of explaining, critiquing, and changing international law, this article proposes that there is much to be gained on all these fronts from the double move of attending to the extensive use of history as a method within international law and treating this historically as an aspect of international legal thought and practice that has changed over time and remains amenable to further change. Genealogy is a particularly powerful means of executing this double move and opening up international legal reasoning to critique from a historical perspective. It has the further advantage of connecting the study of the past with the present in a manner that makes real change possible without reproducing familiar assumptions regarding normativity that may in fact operate to restrict the possibilities for change. A genealogical study of international law will not necessarily entail a normative evaluation of its past or present, nor will it necessarily produce a normatively grounded proposal for change. Instead, it may allow a more radical critique of international law’s present and open up a richer array of possibilities for its future.

3. Historical method, ‘juridical thinking’, and the normative deficit

The traditional and critical objections to history as a means of critiquing international law are not only united in their insistence that there is something about the use of the past in international law that limits the relevance or impact of critical histories. They also share a concern that history cannot provide us with resources for change.

Orford’s objection to using historical methods to critically engage with international law seems to be primarily based on the belief that history’s basic methodological precepts result in a walling in of the past that neglects its continuing relevance for the present. She understands contextual history in particular to be dependent upon a strict division between past and present that is fundamentally at odds with the ongoing relation of past and present that characterizes international legal reasoning. A commitment to this distinction is what makes the use of the past in present international law appear hopelessly anachronistic. Orford’s response takes the form of an inversion. She suggests that this very anachronism – recast as the temporal and spatial dynamism of ‘juridical thinking’ – is more effective than history as a means of critically engaging international law.Footnote ²³

Orford’s broad concern is that (contextual) history cannot help us to understand the way that meaning ‘moves across time and space’.Footnote ²⁴ Yet, she also appears to be concerned with the capacity of history to answer the immediate question ‘what are we to do?’. Orford suggests that we should value ‘juridical thinking’ for its ability to take the past as ‘a source or rationalisation of present obligations’ and provide a means of ‘[making] the present intelligible’.Footnote ²⁵ She understands the injunction against anachronism as a matter of historical method to exclude these possibilities. Her (re)turn to the juridical, then, appears to be partly motivated by the belief that normative resources may be gained by so doing – particularly, that ‘references to past texts’ may be used ‘to achieve … ideological innovation’.Footnote ²⁶

There is some oblique reasoning at work in Orford’s move from history to the ‘juridical’. The suggestion that ‘juridical thinking’ is partly, even substantially, defined by forms of reasoning that treat aspects of the past as normatively significant for the present may be accepted as an adequate description of international legal argument. This can be seen in the use of precedent most obviously but also – and, indeed, more importantly for international law, where the role of precedent in the strict sense is somewhat limited – in the central task of identifying what the law (created in the past) is for the purposes of applying it to a present problem. Orford suggests that the same form of reasoning accounts for the insight that ‘legal concepts and practices that were developed in the age of formal empire may continue to shape international law in the post-colonial era’.Footnote ²⁷ Yet critical historical scholarship exposing international law’s imperial legacy for the most part does not adopt the form of reasoning used within international legal argument. Nor are the continuing effects of imperialism seen as solely a function of those forms of reasoning (e.g., the continuing validity of legal doctrines established in a colonial context). Rather, the success of TWAIL scholarship in demonstrating that international law has been and continues to be shaped by its imperial past is largely the result of historical analysis informed by a contextualist historical method as well as postcolonial theory.

Where the kind of reasoning Orford identifies as ‘juridical thinking’ can be discerned in this literature, it is far from clear that this is its virtue. The assumption that international law has always been and remains oriented towards justice, for example, may be considered an effect of juridical thinking. In light of this assumption, critique is a matter of exposing the failures of international law to further justice. Significantly, this initially deconstructive historical analysis is readily transformed into a constructive project aimed at overcoming past failures and finally achieving international law’s ‘(immanent) promise’.Footnote ²⁸

The normative effect of exposing ‘what went wrong’ en route towards justice as international law’s basic aspiration may appeal to scholars and practitioners of international law as a constructive form of critique that makes use of the normative resources international law itself provides. Yet this form of analysis comes at a cost, and may be better understood as a symptom of the limits of ‘juridical thinking’ to be overcome than a virtue to be cultivated. What is missing here, and in the kinds of enquiry we might identify as ‘juridical’ rather than historical, is a critical perspective on the particular forms of normativity deployed in international law, which are reproduced rather than critically interrogated by calls for the law to live up to an immanent promise of justice.

Orford recognizes that the way in which international legal reasoning tends to relate past and present is problematic as history. Yet like those doctrinal scholars who deny the relevance of critical histories of international law, she also suggests that a distinction between ‘juridical’ forms of reasoning and historical argument limits critique on this basis. The following discussion reflects on the factors encouraging this view and questions its plausibility. It is argued that the charge of anachronism, far from being inapposite in relation to the ‘juridical’, finds a target in standard histories of international law as a discipline and also has teeth in relation to international legal reasoning precisely because grand narratives of international law and legal argumentation within it make use of historical methods and their ‘truth effect’. Anachronism, however, is not the defining feature of international law, though it can be identified in many traditional histories of international law and certain instances of international legal reasoning. What is significant about international law is rather the centrality of historical forms of reasoning within it. That these forms of reasoning have (historically) tended towards anachronism does not mean that anachronism is necessary or inevitable. Orford’s identification of ‘juridical thinking’ with the movement of meaning over time is not evidence of international law’s departure from history. It is testament to the extent to which history and law are bound up together.

4. Histories of international law and history within international law

Strategy may well play a part in the proposed (re)turn to the ‘juridical’ as a mode of critically engaging international law. As doctrinal international lawyers turn away from the insights and challenges of historical critique, recourse may be had to ‘juridical’ concepts and forms of argument in an effort to engage the ‘mainstream’ on more familiar terms or matters. Yet mainstream resistance to critique in a historical mode does not necessary signal its weakness as such. Rather, it points to the complicated relationship between (i) the use of history within international law, (ii) standard histories of international law that among other things seek to establish and reinforce its pedigree and status as a discipline, and (iii) critical histories of international law.

Critical histories of international law are usually opposed to standard histories of international law rather than history as it is used within international legal argument. Instead of being based on an assessment of where critique is most needed (or where the greatest danger lies), this focus appears to reflect a belief that international legal reasoning is unassailable by or at least less amenable to a historical mode of critique. As such, it seems that a ‘juridical’ form of reasoning can go where historical critique cannot. The reason why international legal reasoning appears unassailable, however, seems to be the peculiar way in which international legal reasoning relates past and present – that is, precisely the way in which international legal reasoning is historical. Rather than either refusing to engage with or reproducing this ‘historico-legal’ form of reasoning,Footnote ²⁹ attending to the type of history it involves can facilitate a more penetrating critique.

History, as Thomas Skouteris has emphasized, is central to international law.Footnote ³⁰ A historical mode of critique is a means of engaging with and contesting the ‘historical narrative [that] entwines legal writing so seamlessly that it almost passes unnoticed’.Footnote ³¹ The centrality of history to international law admits several different types of intervention. The content of international law’s claims about the past may be challenged, with consequences for its present application. Revisiting familiar precedents, for example, may alter or expand our understanding of their immediate possibilities. The contextual historian might usefully interrogate applications of the doctrine of intertemporality to recover the idiosyncrasies of past law, which may serve to problematize the doctrine itself. Yet challenges to the content of international law’s historical claims may be unduly constrained if they do not also attend to the form of historical argument carrying those claims as well as the form of argument relied on to construct any counter-claims. Engagement with international law through history will be more sharply critical where it is methodologically self-aware – that is, aware of what historical enquiry and history writing is and what it can and cannot achieve.

The advantage of such awareness in relation to international law is twofold. Firstly, the critical historian is attuned to the ways in which scholars and practitioners of international law make use of historical argument. Secondly, the critical historian will reflect upon her own method relative to that employed in international legal doctrine or its application. Many critical histories of international law display this type of reflexivity to some degree. As Skouteris points out, their authors generally understand both the object of study and their writing on it as discourse and do not pretend to recover the truth of the past.Footnote ³² Indeed, an important part of what they do is to ‘bring out the instability of history’s claim to truth’.Footnote ³³ They also take seriously the insights of contemporary historiography regarding, for example, the importance of attending to context and how this differs from a search for causes as well as the dangers of narratives of progress.Footnote ³⁴

Skouteris remains sceptical about how far ‘self-reflexivity about the limits of method really makes a difference’ in critical historical work on international law.Footnote ³⁵ As he observes, many critical historians fall back on conventions such as ‘sequential narrative, cause-and-effect reasoning, ontological statements, and so on’.Footnote ³⁶ Interestingly, Skouteris suggests that they may do so in order to acquire ‘professional validity’.Footnote ³⁷ This insight informs his proposed solution: critical histories need a different ‘methodological template’ – a ‘form that justifies their content’.Footnote ³⁸ He suggests that this template might be determined by ‘established group practices’ bolstered by reference to ‘neighbouring social sciences’, with the basic criterion being adequacy to ‘the primary goal’ of ‘the critique of “axiomatic fictions”’.Footnote ³⁹

While Skouteris is right to call on critical historians to move beyond methodological forms inadequate to the content of their claims, the suggestion that critical historians should identify their own ‘set of professional practices for peer validation’ seems to leave critical history as a kind of preaching to the converted. If ‘mainstream histories’ and critical histories have distinct ‘methodological templates’, how might the latter be mobilized against the former?

One possibility is that critical histories will simply offer an alternative in the same space, leaving the international lawyer to choose between two sets of professional practices. A generous interpretation of this solution might view it as a step towards a greater diversity of international law histories. Such an interpretation might also dismiss any dissatisfaction on the part of either critical or mainstream historians with this accommodation of their disparate approaches as symptomatic of a propensity to universalize their respective methods and insights – a tendency to be resisted. Yet the notion of parallel professional practices remains problematic. The suggestion that ‘mainstream’ histories of international law are valid and persuasive to the ‘mainstream’ while critical histories are valid and persuasive to critical scholars fails to account for the character of the relation between mainstream and critical histories of international law as one of continual conflict rather than comfortable coexistence. More importantly, it fails to grasp what is at stake in this conflict.

The difficulty is not only that the methodological differences between ‘mainstream’ and critical histories are overstated. Skouteris himself recognizes that ‘there may be quite a bit of middle space’ where ‘engaging history can allow new insights to make a huge difference for a lot of people and for a long time even within the present paradigm of liberal democratic political discourse’.Footnote ⁴⁰ Searching for common ground, however, seems to give up too much of history’s critical potential in relation to international law. Instead, it seems that critical histories will have a greater impact on international law if they engage overtly with methodology – both their own and that of standard histories of international law and international legal reasoning. The reason why both mainstream and critical historians are unlikely to be content to rely on their respective peer groups alone for validation is that the mainstream approach is a problem for critical historians and what critical historians have to say about it matters for traditional claims about the history of international law and the use of history within international legal reasoning. This is because and not in spite of the methodological differences.

Historical forms of critique matter to scholars and practitioners of international law because narratives about the origins of particular doctrines or international law in general are an integral part of the discipline. Yet the significance of this fact has not yet been fully realized or exploited in critical historical scholarship. Critical histories often draw out the particular historiography already entwined with international legal doctrine and the grand narratives through which international law establishes and reinforces its distinctiveness and pedigree. Their authors, however, do not always recognize the targets of their critique – for example, myths of objectivity and progress – as features of history within international law. Even the more robust challenges to this representation of international law’s past and present may betray a sense of uneasiness about the fit between their critique and its object – a sense that the latter may resist such critique because it does not claim to be good history but rather good law. The critic may adopt the problematic historical conventions deployed by law in an attempt to improve this ‘fit’.

It seems that there is something to be gained by recognizing that many of those aspects of international law which critical scholarship seeks to challenge are or involve particular forms and uses of history. More specifically, there is something to be gained by recognizing that the historical is closely tied up with what we might think of as the ‘juridical’. This intertwinement may account for some of the distinctive features of international legal reasoning. The ‘juridical’, as such, is not immune to a historical mode of critique. Its alleged distinctiveness cannot be raised as a shield against critical history.

International law is already deeply historical. As Skouteris has emphasized, ‘[international] legal work inevitably requires a positioned engagement with the past, thus producing (or contributing to the production of) “historical knowledge”’.Footnote ⁴¹ Its manner of engaging with the past, however, has for the most part ignored not only marginal developments but also paradigm shifts in historical approaches since the nineteenth century. The methods or techniques that many critical historians of international law fall back uponFootnote ⁴² are the methods and techniques of the international lawyer, whose forms of reasoning and representation seem to be shot through with certain assumptions and approaches to the past that gained prominence in nineteenth-century Europe and were elevated as the methods of a science and profession in Germany in particular.Footnote ⁴³ The ossification of mainstream nineteenth century historical views and methods in international law is not necessarily surprising, given the importance of this period in the making of modern international law.Footnote ⁴⁴ The use of history in the considerable efforts at this time to establish the character and status of international law as law may partly explain the continuing resistance of the discipline to unsettling developments in postcolonial and postmodern history.

While international lawyers may defend their methods as law and not history, the critical historian can show how legal reasoning trades on its treatment of the past as history. Historical methods which obscure important aspects of the past may have become features of international legal reasoning, but many international lawyers will not be content to concede this much and carry on. Many, perhaps most, international lawyers are historical realists not merely as a matter of strategy or even convention,Footnote ⁴⁵ but because they believe that the facts of a matter can be known – even if they admit that such knowledge can only ever be partial due to a lack of relevant historical evidence or an overwhelming mass of it, or in view of the perspectival differences recognized by liberal pluralism.Footnote ⁴⁶ Historical realism in international legal reasoning makes critical challenges to the form and substance of history within international law difficult to accommodate but also difficult to ignore.

International legal argument is strengthened by the use of realist historical narrative only insofar as the coupling of historical realism and narrative form remains professionally respectable and politically persuasive. Where international legal practice is carried on as usual, it is likely to continue to trade on the ‘reality effect’ of this particular form of historical argument (in broad terms, the impression that the law is grounded in the reality of the past).Footnote ⁴⁷ Part of what a critical history of international law can do is to show how these effects are produced.Footnote ⁴⁸ While relative ability to capture the truth will not then be the test for distinguishing ‘better’ history from ‘worse’,Footnote ⁴⁹ both standard histories of international law and history as it is used within international law remain vulnerable to critique by reference to their historical methodology, which often has consequences relating to content.

Scholars turning to history to critique international law would benefit from more directly and consistently challenging the way in which international law positions itself in relation to and otherwise engages the past. If this prevents the easy uptake of counter-narratives in current forms of legal reasoning, then it may also permit greater resistance to the inevitable efforts to dilute, disarm, or co-opt historical critique.

Critical histories of international law are especially powerful when they challenge the pedigrees international law claims both for its doctrines and as a discipline. Genealogy, as articulated and exemplified by Nietzsche and further developed by Foucault, is, as Raymond Geuss argues, ‘the exact reverse of what we might call “tracing a pedigree”’.Footnote ⁵⁰ Whereas tracing a pedigree is a process of ‘positively valorizing some (usually contemporary) person, institution, or thing’ by demonstrating a line of succession from an origin which preserves or enhances value, genealogy will usually expose a ‘historically contingent conjunction of a large number of such separate series of processes that ramify the further back one goes and present no obvious or natural single stopping place that could be designated “the origin”’.Footnote ⁵¹ While a pedigree will find its origin in something that is positively valued today, the processes thrown up by a genealogical enquiry may be ‘steeped in blood’.Footnote ⁵² Significantly, as Geuss observes, the bloody origins of present arrangements are not for Nietzsche an argument against them, though they may be for those who believe that ‘things we now value (for whatever reason) must have had an origin of which we would also approve’.Footnote ⁵³ Some critical histories of international law trade on or indeed share this ‘sentimental assumption’.Footnote ⁵⁴

Genealogy as a form of both history and critique not only challenges the content of international law’s pedigrees but this very manner of relating past and present. While genealogy is fundamentally concerned with the relation between past and present, it opposes itself to and exposes the limitations and dangers of the kind of claims for the present relevance of the past that are exemplary in international law – ‘the metahistorical deployment of ideal significations and indefinite teleologies … the search for “origins”’.Footnote ⁵⁵ As we shall see, genealogy is critical of the anachronism of this approach to the past, but not because it seeks to restore the truth of the past for its own sake. For the genealogist, history is to be ‘used for life’.Footnote ⁵⁶

5. Context, anachronism, and the place of the present

Critical histories of international law assert the significance of investigations of the past for the present. Yet the relationship between past and present may be theorized (implicitly or explicitly) in a variety of ways, not all of which are unproblematic. A common problem is anachronism – a failure of historical method famously detailed and railed against by Quentin Skinner in his polemical 1969 essay on ‘Meaning and Understanding in the History of Ideas’.Footnote ⁵⁷

Anachronism appears as a problem for the historian primarily because the difference of the past may be obscured by its study in terms of the present. The contextual approach identified with the so-called ‘Cambridge School’ may be understood to respond to this basic concern. It would be a mistake, however, to read the critique of anachronism as advocacy for a ‘pure’ description of the past without contemporary relevance or, based on such a reading, to dismiss the charge of anachronism as carrying weight only for those similarly committed to such ‘purity’. The critique of anachronism does not necessitate an embrace of antiquarianism. Nor is it a refusal to engage with contemporary politics.Footnote ⁵⁸ On the contrary, it is to recognize, like Eric Hobsbawm, that ‘the most usual ideological abuse of history is based on anachronism rather than lies’ and to challenge, through history, the myths that legitimize various forms of subjugation.Footnote ⁵⁹

Scholars seeking to advance the critique of anachronism have sometimes misrepresented it, which may account for some of the misunderstanding apparent in objections to its claims. Such a misrepresentation seems to have prompted Orford’s dissatisfaction, even frustration, with the injunction against anachronism as applied to historical work on international law.Footnote ⁶⁰ Her counter-argument for ‘juridical thinking’ responds to a characterization of the critique of anachronism and contextual history more broadly that does not do either justice. ‘Juridical thinking’ is presented as its negative, with anachronism redescribed as a dynamic relating of past and present encouraging ‘ideological innovation’ through re-engagement with past texts.Footnote ⁶¹

It is perhaps significant that Orford’s initial quarrel with the critique of anachronism concerns its application to Antony Anghie’s work on imperialism and international law. While understandably concerned to defend Anghie’s powerful unmasking of the constitutive and continuing significance of imperialism for international law, Orford identifies the ‘tendency amongst contemporary international lawyers to draw a line between yesterday’s imperialism and today’s international law’ – which by no means follows from a critique of anachronism – with allegations that particular aspects of Anghie’s work are anachronistic.Footnote ⁶² This leads her to a general defence of Anghie’s work and TWAIL scholarship at large as ‘an intervention that challenges the place of the past and the work of history in international legal arguments’.Footnote ⁶³ Orford suggests, however, that this intervention is facilitated by a distinctively legal insight into ‘how concepts move across time and space’.Footnote ⁶⁴ She both contrasts this with (contextual) history as a matter of ‘[thinking] about concepts in their proper time and place’Footnote ⁶⁵ and identifies it with a method – later described as ‘juridical thinking’ – that, far from being concerned to avoid anachronism, apparently derives strength from its embrace.Footnote ⁶⁶

An initial difficulty with this analysis is that the TWAIL challenge is consistent with and often powered by a contextual historical methodology that is highly sensitive to the dangers of anachronism. TWAIL scholars have identified European imperialism as the historical context that best explains the development of the discipline and its doctrines. Their work typically challenges the representation of present categories of juridical thought as natural and inevitable. It does not project these categories back onto the past but shows how an imperialist past has shaped them. Where this scholarship does lapse into anachronism, it comes at the cost of a more powerful historical critique. Thus Ian Hunter argues that in treating jus gentium as containing within it at all times (including Vitoria’s) a promise of global justice, Anghie obscures ‘the disparate intellectual sources … from which rival jus gentium discourses were fashioned’ as well as the conflicting interests these discourses served.Footnote ⁶⁷

Orford’s vision of law and history as ‘[standing] on the opposite sides of the dividing line between present obligations and archaic traditions’ obscures the relationship between these disciplines (or ways of thinking and sets of practices) by passing over the more complicated interplay between past and present in both.Footnote ⁶⁸ Her defence of ‘juridical thinking’ depends on a false dichotomy between history and law in which the former takes the past as dead and gone and studies it for its own sake, whereas the latter recognizes its continuing relevance and actively engages in moving meaning across time.Footnote ⁶⁹ Having identified the ‘movement of meaning’ across time as the target of the critique of anachronism, she concludes that a study of that ‘movement of meaning’ requires anachronism. The ‘juridical’, as an allegedly anachronistic form of reasoning, is then embraced as a means of engaging with and in the ‘movement of meaning’ in international law.

To the extent that international law simply is anachronistic, it is not clear how a critical perspective or any other advantage could be gained by adopting an equally anachronistic mode of engaging with its doctrines and practices. It is also doubtful whether international law, though often anachronistic, is ‘necessarily’ so.Footnote ⁷⁰ There is some evidence of a concern to avoid anachronism embedded in doctrine, for example, the principle of intertemporality.Footnote ⁷¹ The same concern may account for the fact that international legal scholars rarely respond explicitly to a charge of anachronism by denying its applicability to international law as law.Footnote ⁷² This reflects the centrality of history in international law. The tendency to anachronism in traditional histories of international law and international legal reasoning is not an inevitable corollary of the significance of history for both the discipline and doctrine. Rather, the extent to which international law entails historical argument is what allows anachronism to be challenged from the standpoint of historical methodology (and by reference to the politics different historical methodologies entail).

Orford’s suggestion that we should turn away from history to a self-consciously anachronistic mode of engaging international law seems to be driven by a concern that ‘good’ history – that is, history that attends to context and avoids anachronism – cannot deal adequately with the movement of ideas over time or claim relevance for the present. She does not, however, provide adequate reasons for this assessment of historical contextualism, nor does she clearly demonstrate the advantages of ‘juridical thinking’ in this regard. In fact, while she appears to ground her case for ‘juridical thinking’ on the relative failings of contextual history, Orford expressly draws attention to a more nuanced understanding of context in contemporary historical work influenced by or associated with the ‘Cambridge School’.Footnote ⁷³ She also points to other possibilities for critically engaging the past through historical work oriented towards the present – Foucauldian genealogy in particular.Footnote ⁷⁴ Nevertheless, Orford continues to insist upon the value of ‘juridical thinking’ in contradistinction to the narrow view of context and the relation between past and present that these (historical) approaches challenge.Footnote ⁷⁵ The first difficulty with this move is that it fails to show why historical work that takes a sufficiently expansive view of context and attends to the relevance of the past for the present would not be adequate to the task of explaining and critiquing international law. The second is that the ‘juridical approach’ advocated may be substantially less capable of explaining and critiquing international law than forms of critical history like genealogy.

Responding to commentary on her 2011 study of International Authority and the Responsibility to Protect, Orford has explained that the book was ‘a wager that there is something to be gained—theoretically, politically and empirically—by developing a primarily juridical (rather than historical, philosophical, economic or sociological) method as a basis for exploring… contemporary international developments’.Footnote ⁷⁶ Her emphasis on the ‘juridical’ character of this work responds to Charlotte Peevers’ suggestion that a more detailed study of the context of the ‘conduct’ of Dag Hammarskjöld in relation to the Suez crisis (its relationship to and interplay with the Great Powers in particular) might have helped to make sense of his ‘practices of authority’ and their subsequent influence.Footnote ⁷⁷ Peevers’ concern was that the archival basis for Orford’s contextualization of Hammarskjöld’s practices was too narrow. Orford’s response engages at a theoretical level with historical method, including historical contextualism, more broadly. She draws in this regard on an earlier and more extended reflection on the relationship between law and history in which she presents ‘the past as law’ in opposition to ‘the past as history’.Footnote ⁷⁸ Distinguishing legal and historical modes of engagement with the past, Orford insists that ‘[t]he self-imposed task of today’s contextualist historians is to think about concepts in their proper time and place’, while ‘the task of international lawyers is to think about how concepts move across time and space’.Footnote ⁷⁹

In light of Orford’s characterization of International Authority and the Responsibility to Protect as making use of a ‘primarily juridical (rather than historical, philosophical, economic or sociological) method’, we might look to this text to get a better sense of what this ‘juridical method’ entails and how it differs from a historical method in particular. Orford claims to use a ‘primarily’ rather than exclusively juridical method and it seems that aspects of the book are also informed by historical contextualism and certain insights drawn from Foucault. Orford refers expressly to the relevance of context for the political thought of Hobbes and Schmitt.Footnote ⁸⁰ She also identifies Foucault’s approach in The Birth of Biopolitics as the inspiration for her focus on the way in which certain international practices of governance have been rationalized through the concept of the responsibility to protect.Footnote ⁸¹ Yet, unlike Foucault, Orford does not study these practices and their rationalization genealogically. She occasionally suggests that the responsibility to protect concept is part of ‘a long tradition of political thought’ that includes challenges to papal authority in the sixteenth and seventeenth centuries and the thought of both Hobbes and Schmitt.Footnote ⁸² Her more consistent argument is that this history has an analogical relevance, ‘help[ing] to reveal the stakes of the turn to protection as the justification for international authority today’.Footnote ⁸³ Rather than exploring the ‘historically contingent conjunction’ of ‘a number of diverse lines of development’ in the modern concept of responsibility to protect,Footnote ⁸⁴ Orford examines a more limited number of events and thinkers identified as ‘similar to’ or ‘resembling’ one another and more recent developments.Footnote ⁸⁵ She looks to these analogous situations to identify ‘the potential promises and dangers inherent in the linking of authority, responsibility and protection’.Footnote ⁸⁶

This is presumably the ‘juridical method’ at work. There is clearly room for anachronism in this approach, though Orford does not expressly embrace anachronism as a method in this text (indeed, she appears at least partly concerned to avoid it). The preeminent risk is what Skinner describes as a form of ‘conceptual parochialism’ – the ‘[conceptualization of] an argument in such a way that its alien elements are dissolved into an apparent but misleading familiarity’.Footnote ⁸⁷ The key question is whether this limits the critical effectiveness of Orford’s juridical method.

In the context of Orford’s present and future-oriented project, the danger is not that the past may be misrepresented but that her historical work may fail in the task she sets it. In this regard, anachronism of the type described above is a problem. Mining the past for analogues may not reveal what is at stake in the turn to protection as the ground for international authority insofar as it obscures the ‘the details and accidents’Footnote ⁸⁸ in fact playing a part in that turn. As such, it is likely to have reduced potential as a guide to the institution of appropriate limits to the action that may be taken on this basis.Footnote ⁸⁹

Orford suggests that ‘law is inherently genealogical’Footnote ⁹⁰ but it is not genealogical in a Nietzschean or Foucauldian sense. The term ‘genealogy’ has, of course, different meanings, and is perhaps most familiar as ‘an account of one’s descent from an ancestor or ancestors … a pedigree’.Footnote ⁹¹ This is closer to the sense in which Randall Lesaffer uses the term genealogy, which he identifies with ‘evolutional history of the worst kind’ and the kind of history generally advanced and accepted by international lawyers.Footnote ⁹² This is very different from genealogy in the spirit of Nietzsche and Foucault, which, as the latter insists, ‘does not resemble the evolution of a species and does not map the destiny of a people’.Footnote ⁹³ ‘Evolutional history’ takes the pedigree form that Nietzschean-Foucauldian genealogy opposes:Footnote ⁹⁴ it attempts ‘to give current ideas or practices roots in the past’.Footnote ⁹⁵ It is the anachronism of this mode of historical enquiry that Lesaffer underscores – its failure to attend adequately to context, its description of the past ‘in terms of similarities with or differences from the present’.Footnote ⁹⁶

Orford argues that ‘[t]he approach to interpreting past events or texts only in the context of their time has faced challenges both from within the disciplinary world of practicing historians and from more philosophically-oriented scholarship’, referring to Francis Oakley and Michel Foucault in particular.Footnote ⁹⁷ Crucially, however, the challenges Orford identifies here are not in fact inconsistent with a contextual approach or an opposition to anachronism.

Oakley is critical of narrow constructions of context that ignore the ways in which the ideas and concerns of past thinkers continue to influence later thinkers.Footnote ⁹⁸ This point, however, may be taken to affirm rather than deny the importance of context and does not necessarily require an expansion of the latter concept that amounts to anachronism.Footnote ⁹⁹ Foucault’s ‘histories of the present’ are also concerned to avoid anachronism and this is indeed part of the strength of genealogy as a method. An awareness of the ways in which present concerns and categories of thought may distort our understanding of the meaning of an idea, event or set of practices in its context is important for anyone who wishes to trace the way an idea, event or set of practices has changed with time and place.

Oakley has emphasized ‘the degree to which the authors whose texts are to be interpreted inhabited a world peopled through books with the dead’.Footnote ¹⁰⁰ Skinner has also clarified that while meaning depends on context ‘[t]here is no implication that the relevant context need be an immediate one’.Footnote ¹⁰¹ A point about the risks of anachronism remains to be made here. It is Foucault rather than Skinner who best captures this in his observation (in the course of his account of the ‘historical a priori’) that ‘[t]he men of the seventeenth and eighteenth centuries do not think of wealth, nature, or languages in terms that had been bequeathed to them by preceding ages or in forms that presaged what was soon to be discovered’.Footnote ¹⁰² Though the past at any point possesses and draws upon its own past, it should not be assumed that ‘the dead’ who inhabit a given world through their books will be understood and used in the way that they were understood or used in their ‘own’ time.

Orford acknowledges Skinner’s more nuanced understanding of context. She maintains, however, that his ‘denunciation of anachronism challenged the idea that the movement of meaning beyond the context of its own time, including through the writing of history, was a core aspect of politics’ – pointing to Christopher Hill and Hugh Trevor-Roper as historians who conversely ‘believed that history had a political purpose beyond amusing accounts of the past’.Footnote ¹⁰³ If the implication is that Skinner’s critique of anachronism reduced history to ‘amusing accounts of the past’ and denied it political significance, he has been misunderstood. The critique of anachronism is in large part a response to the ideological use of history, particularly that Herbert Butterfield famously identified as ‘whiggish’.Footnote ¹⁰⁴ Efforts to counter such anachronism through other forms of history, including contextual history, may be directly concerned with the significance of the past for the present.

While he denies that the value of texts composed in the past for the present resides in their concern with ‘perennial’ problems, Skinner has argued that:

Interpreting past events in their context is certainly not incompatible with a study of movement and change in ideas, institutions and practices over time and space. In his 1969 essay, Skinner’s criticism of attempts ‘to trace the morphology of a given concept over time’ is a criticism of the assumption of a concept as given. His target is the type of historical enquiry which begins by ‘set[ting] out an ideal type of the given doctrine’ which is then treated:

Skinner was objecting in particular to Lovejoy’s representation of historical enquiry as a search for instances of universal ‘unit-ideas’,Footnote ¹⁰⁷ as well as what R. G. Collingwood criticized as ‘scissors-and-paste’ history, where we ‘decide what we want to know about and then go in search of statements about it, oral or written, purporting to be made by actors in the events concerned’ or reliable witnesses.Footnote ¹⁰⁸ This is not an objection to study of the ‘movement of meaning’Footnote ¹⁰⁹ but a call to recognize that the meaning that moves should not be presupposed.

Skinner, like most notable contextual historians, has long been concerned with the movement of ideas over time.Footnote ¹¹⁰ It is because and not in spite of this interest that contextual historians have also been concerned to avoid anachronism, which may distort an understanding of the ideas in question and the ways in which they have changed.

Orford also points to Foucault as developing ‘a philosophical challenge to the clear demarcation between past and present’ – a challenge she appears to identify with an embrace of anachronism.Footnote ¹¹¹ Yet Foucault, like Skinner, objects to what he calls (after Nietzsche) the ‘Egyptianism’ that abstracts concepts from their historical context.Footnote ¹¹² He insists that the task of tracing changes in practices and ideas over time requires careful attention to the difference or ‘otherness’ of the past.Footnote ¹¹³

This is not to deny the important differences between Foucault and Skinner, even after Skinner’s explicit embrace of genealogy.Footnote ¹¹⁴ Skinner’s concern with authorial intent and his focus on linguistic and ideological context over social, cultural and economic context set his intellectual history apart from Foucault’s historical-philosophical investigations.Footnote ¹¹⁵ Koopman has also suggested that Skinner’s genealogy would benefit from attending more explicitly to the questions which particular theories, such as liberalism, have attempted to answer – an approach that Koopman identifies with both Collingwood’s ‘question-and-answer historiography’ and Foucault’s notion of ‘problematization’.Footnote ¹¹⁶ Notably, this approximates just one of the senses of ‘problematization’ in Foucault, who not only considers the problematization of concepts in the past and ‘the practices on the basis of which these problematizations are formed’,Footnote ¹¹⁷ but ‘the questioning by the philosopher [or historian] of this present to which he belongs and in relation to which he has to situate himself’.Footnote ¹¹⁸

Notwithstanding these points of difference, the suggestion that Foucault is opposed to the contextualist critique of anachronism cannot be supported. Indeed, Foucault expressly stresses that writing a ‘history of the present’ does not mean ‘writing a history of the past in terms of the present’.Footnote ¹¹⁹ Unlike ‘evolutional’ history,

While genealogy ‘begins from a question posed in the present’,Footnote ¹²¹ it is not ‘presentist’ – ‘reading present interests, institutions, and politics back into history … and claiming to discover that these institutions in earlier times had … [something] like their current significance’.Footnote ¹²² Nor is it ‘finalist’ – ‘[finding] the kernel of the present at some distant point in the past and then [showing] the finalized necessity of the development from that point to the present’.Footnote ¹²³ To develop a genealogy is to investigate historically the conditions of possibility for present ideas and practices in a manner that ‘maintain[s] passing events in their proper dispersion’.Footnote ¹²⁴

It is important to be clear that anachronism is not merely a technical error of concern only to historical purists or methodological pedants. Decrying anachronism as a historical ‘sin’ may appear heavy-handed and the moralism of this popular formulation is unfortunate. It should, nevertheless, be a clue to the nature of the concern with anachronism – the understanding that what is at stake is not trivial and that there is also some hope of avoiding the envisioned ills.

Anachronism stands in the way of a radical critique of the present by reference to the past. By challenging anachronism, we may challenge the perpetuation of particular politics in the present in the name of historical truth. The critique of anachronism, however, does not depend upon a counter-assertion of historical truth. It does not imply a belief that the historian can access objective facts concerning the past in an objective and disinterested way. We may take the subject of history to be unstable and shifting interpretations, discourses, ways of speaking, or forms of life, and we may understand history writing itself to be an act of interpretation. We may appreciate that all these interpretations are conditioned by the perspective of their authors and the contexts of their creation. This in no way undermines the political importance of the critique of anachronism and efforts to avoid its most dangerous forms.

What the historian seeks to achieve through a sensitivity to and effort to avoid these forms of anachronism need not be (cannot be) access to some objective truth or reality of the past. The critique of anachronism by no means entails a view that the reality of the past can be known or even exists in any reliable way. Anachronism continues to matter for historians who are rather concerned to examine the complex, constructed, unstable and shifting ‘truths’ associated with particular forms of life and to consider how they have (or have not) contributed to various aspects of our present.

This way of looking at the past does not mean that all histories are equally valid or valuable – there is no embrace of relativism in this sense. Genealogy can still be advocated as a critical and historical method with particular strengths in particular contexts. It can still be used to critique other claims regarding the past and its significance for the present. History as interpretation can still do a better or worse job of constructing the meaning of past interpretations. Interpreting the past through the lens of the present – as opposed to trying to construct a history of the present – will generally hamper such efforts. This kind of anachronism also obscures the difference and discontinuity of the past which genealogical work illuminates.

We should not forget Nietzsche’s call for the ‘use of history for life’. The genealogist is concerned to avoid anachronism in order to explain, critique, and alter the present. Indeed, genealogy directly exposes the way in which anachronistic ‘pedigree’ forms of reasoning limit our understanding of both the past and present possibilities. As an approach to the study of international law, it allows the anachronistic tendencies of international law’s use of history to be both historicized and challenged through the enactment of an alternative way of engaging the past in the service of the present.

6. Genealogy as critique and the normative deficit

Critical histories of international law, like other critical international law scholarship, tend to be anxiously scrutinized for normative implications. Indeed, critical work is frequently dismissed as ‘merely’ deconstructive with calls for a ‘constructive’ element sounded loudly (sometimes in place of a deeper engagement with critique and its consequences). This objection, which is in some cases framed as an argument about the limits of exposing contingency, must be taken seriously; however, it is useful to reflect on the beliefs and expectations that underpin or attend it. Rather than conceding the validity of the objection and mounting a defence, it should be asked why scholars and practitioners of international law, including the critically minded, might take the view that the construction of an alternative ideal should accompany its critique. In order to appreciate the significance of genealogical critique, it must be recognized that the contemporary relevance and positive value of historical work need not depend upon it having the character of a ground-clearing exercise making way for a programmatic agenda for reform.

It should be emphasized that this is not an argument for nihilism and negation over the reform and redemption of international law or a call for ‘external’ over ‘immanent’ critique. Nor is it an embrace of the inverse. While these were debated as alternative approaches in the early days of the TWAIL movement (which now encompasses both), this typology fails to capture how historical critique – and genealogy in particular – can operate and what it might achieve.

The historical study of present circumstances which explores the conditions of their possibility aims to make the present ‘intelligible and, therefore, criticizable’.Footnote ¹²⁵ Yet genealogy is itself critique and not merely a preparation for it. Critique, as Judith Butler has observed, ‘is always a critique of some instituted practice, discourse, episteme, institution, and … loses its character the moment in which it is abstracted from its operation and made to stand alone as a purely generalizable practice’.Footnote ¹²⁶ But this does not mean that generalizations are impossible. What is distinctive about genealogy as critique is its departure from and opposition to judgment based on normative criteria. Criticism of Foucauldian genealogy as lacking normativity may in fact be evidence of what Lemke redescribes as ‘the compulsion that binds each political intervention to a proof of justification, a norm of identity, or, in [Foucault’s] words, “an investigation [of] legitimacy”’.Footnote ¹²⁷ Rather than succumbing to this compulsion, Foucault problematizes it – that is, his critique ‘[puts] in question a theoretical practice that calls upon us to take a position in an already fixed political system’.Footnote ¹²⁸

Instead of judging, genealogy problematizes and puts into question the ‘constellations of power’ or ‘collection of ideas on display’ to which judgment would simply have recourse.Footnote ¹²⁹ As Geuss argues, genealogy can be contrasted with the ordinary sense of critique as ‘a way of denying or saying no to something’.Footnote ¹³⁰ In the latter sense generalized by Kant in particular, critique and justification are two ‘reciprocally and internally related acts’ in a ‘language game of proffering grounds and reasons’.Footnote ¹³¹ Genealogy as critique puts these ‘language games of grounding, critique and justification’ into question, understanding them as ‘various and contingently produced forms whose emergence and disappearance must be identified and traced historically’.Footnote ¹³² To do so is not necessarily to reject those language games or to deem them invalid. Rather, a genealogical mode of enquiry problematizes ‘the apparently self-evident assumptions of a given form of life and the (supposedly) natural or inevitable and unchangeable character of given identities’.Footnote ¹³³ It refuses to take the ‘object’ of study to be a ‘unified, internally coherent, given phenomenon’, but asks why it has come to be considered as such.Footnote ¹³⁴

Genealogy is a form of critique suspicious of efforts to ‘imagine another system’ that ‘extend our participation in the present system’.Footnote ¹³⁵ Foucault was acutely aware of the fact that:

Hannah Arendt makes a related point through her metaphor of the banister, noting that:

Scholars (re)turning to ‘juridical thinking’ in critical work on international law may be clutching at a banister – and a familiar one, even if several of its balusters have been replaced. Genealogy as critique is incompatible with such a move because it aims ‘to bring into relief the very framework of evaluation itself’.Footnote ¹³⁸

While Nietzsche described his ‘genealogy of morals’ as ‘a transvaluation of values’, his representation of that formerly taken to be ‘good’ as ‘evil’ and vice versa was a means of exposing, among other things, how values are produced through particular forms of historical narrative and based on historically specific interests.Footnote ¹³⁹ Nietzsche proposed a move ‘beyond good and evil’ and he presented his genealogy as both a ‘clarification and supplement’ to the book bearing that ‘dangerous slogan’.Footnote ¹⁴⁰

Foucault, like Nietzsche, is not merely concerned with particular evaluations, but the framework upon which evaluation depends. The crucial question is, as Butler puts it:

To engage in critique is, for Foucault, not merely to ‘object to this or that governmental demand, but to ask about the order in which such a demand becomes legible and possible’.Footnote ¹⁴² The genealogist investigates ‘the epistemological orderings that have established the rules of governmental validity’ – an exercise that entails a ‘[departure] from the established grounds of … validity, marking the limit of that validity, which is something different and far more risky than finding a given demand invalid’.Footnote ¹⁴³ The ‘rules of validity’ on the basis of which international law proposes to govern depend on a variety of relations between power and knowledge that it is the task of genealogy to uncover.

Allegations of undue pessimism often accompany objections to critical histories on the grounds of normative insufficiency. Yet pessimism may be too readily identified with nihilism in the form of either apathy or an undiscriminating will to destroy. Foucault advocates a form of ‘hyper- and pessimistic activism’.Footnote ¹⁴⁴ Rather than being ‘the premise of a deduction which concludes: this then is what needs to be done’, Foucault conceives of critique as:

The genealogist does not claim to have prior knowledge of, or to uncover by way of her historical work, a clear normative framework that may be taken to support specific policy proposals and constitute an argument against others. Yet this is precisely the strength of this mode of historical critique. To develop genealogies of international law (or aspects of it) is to bring into question the sense of normativity deployed within and around its discourses and practices. To ask ‘what we should do next’ is, as Butler notes, to ‘[presuppose] that the “we” has been formed and that it is known, that its action is possible, and the field in which it might act is delimited’. In genealogy, however, the ‘we’, its constitution, and its possibilities for action, are all part of the historical field under investigation.