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MARIANNE CONSTABLE AND SYLVIA SCHAFER |
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Like culture and society, law often serves as the subject matter or object
of history. Historians working from outside law recognize that formal or
positive human-made laws and legal institutions themselves turn the stuff
of the world into objects, subjecting them to legal regulation and control.
Even when they take to heart Michel Foucault’s displacement of the centrality
of the subject as agent and as cause though, historians tend to link
law—whether as sovereign, disciplinary, or governmental power—to intellectual
history or to politics. They trace the promulgation and enforcement
of law and examine legal relations of oppression and resistance to show
how law simultaneously acts and is acted upon. Their histories sometimes
seem oblivious to the ways in which law as a discipline also writes its own
histories, however. Historians working in this framework thereby miss the
ways in which law makes history its object and challenges how history would
approach law and make law its object.
There are, and of course have been, many kinds of law, with their own
vocabularies and arrangements, sometimes recognizable, sometimes translatable,
sometimes not, to one another. Within the academy as well as in
public opinion, twentieth-century Western law, whether celebrated or deplored,
has largely appeared to consist of formal statutes and rules of judicial
opinions of nation-states. Thus, in the United States, we have histories of
constitutional law and of the development of the Bill of Rights; in Europe, of
the spread of Roman law. Empirically oriented "law and society" scholars,
whose sociological realism dates back to turn-of-the-century challenges
to the formalism and false ideologies of the legal academy, have generally
criticized such official or positive laws and their insider histories. Instead
they offer accounts of "law in action," or of the power and behavior of officials,
and of the development of private law and of policing and punishment.
Conventional twentieth-century disputes between the legal academy’s "law
on the books" and socio-legal scholars' "law in action" have given short shrift to the customs, religious laws, and natural laws of other times and places,
and even to non-domestic international or interstate law.
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MARTTI KOSKENNIEMI |
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Histories of international law rarely engage with what experts—teachers
and practitioners—feel to be the existential insecurity of the field. Is there
such a thing as international law? What sort of thing is it? Engaging with
the so-called deniers is a traditional textbook topos, and every international
lawyer knows half-a-dozen w ays to defend the existence or relevance of
international law, and is ready with rejoinders to those who doubt. But so
far no serious debate has been triggered on what the subject-matter of the
history of international law might be or where its archive might be found.
True, chronological problems are sometimes raised: is it possible to speak
of international law with respect to the practices of warfare or diplomatic
mores of Western Antiquity, for example? Was there international law before
1648, or before there were specialists addressing themselves as international
lawyers in the late nineteenth century? But questions such as whether the
writings of a philosopher such as Immanuel Kant on perpetual peace belong
to the history of international law are rarely posed. Basic histories do
reference the teachings of the Dominican theologian Francisco Vitoria at
the University of Salamanca in the sixteenth century on the question of the
conquest of the Indies. They do this despite the fact that his lectures were
part of the training of aspiring clerics on the management of the sacrament
of penance and even as he himself pointed out that "since this is a case of
conscience, it is the business of the priests, that is to say the Church, to pass
sentence upon it." Why should legal historians care?
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SHAI JOSHUA LAVI |
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According to a generally accepted, albeit at times controversial etymology,
the terms law and legality both originate from the Latin verb legere, to
gather or to bind. But who does law bind, what does law gather, and how?
The sociological tradition, ever since Durkheim, has provided a definitive
answer to this question. Law is a social bond: it binds members of society
to each other through their commitment to collective norms. Contemporary
socio-legal scholars may depart from Durkheim’s legacy in numerous ways,
but they do maintain that law is a social phenomenon, and that a pivotal aim
of law is inclusion and exclusion from a collective.
History opens alternative ways of thinking about law and allows us to
explore legal bonds that are not primarily social. We have long known that
not all law is state law. It is equally true that not all law is social; not all legal
bonds are primarily social bonds that govern human relationships. Religion
is a case in point, for religion, like law, binds and gathers. Indeed, religio stems
from religare, an intensified form of the same root, legere. But religion binds
differently than modern secular law does. This is true not because religious
law substitutes a divine sovereign for a worldly one, but rather because it
creates a distinct type of bond. Modern secular law is social because its
norms govern—primarily if not exclusively—the relationship between human
beings, whereas religious law, in its historical context, primarily binds
humans to other beings both worldly and divine, and only secondarily or
simultaneously to each other.
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K-SUE PARK |
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In recognition of the services that settlers on the frontier had rendered to
the nation in its pursuit of Westward expansion, the House Select Committee
on Indian Depredation Claims urged the government in 1888 to admit
that it owed them a debt. The committee report declared, "To no class of its
citizens is the American Government more indebted than to the heroic men
and women who, as pioneers of our civilization . . .risked life and property
to secure homes, wealth and progress as the heritage of those who should
follow in their pathway." Congress considered this argument in the context
of a raging late-nineteenth century debate about how to resolve a bureaucratic
problem: the backlog of thousands of Indian depredations claims that
had been filed over the last century for settlers’ loss of property in lands still
claimed and occupied by native tribes.
An Indian depredation claim was a legal claim for compensation from
the U.S. government created by the Trade and Intercourse Act of 1796. Section
14 of this act provided that "if any Indian or Indians, belonging to any
tribe in amity with the United States," cross a boundary line to enter "into
any state or territory inhabited by citizens of the United States, and there
take, steal, or destroy any horse, horses, or other property" or "commit any
murder, violence or outrage" upon a citizen or inhabitant of the U.S. and its
territories, it was the duty of the aggrieved persons to make an application
for compensation, rather than seek "private satisfaction or revenge." If the
Indian nation did not itself pay the claim, the U.S. promised to do so by
deducting amounts from tribal annuities. In Congress’s words, "In respect
to property . . .taken, stolen, or destroyed, the United States guarantee to
the party injured, an eventual indemnification."
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SAMERA ESMEIR |
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A new word entered the English language in 1789, and soon found its way
to other languages. But its effects on juridico-political life, as well as on the
contending concept of the world, remain uncharted. This word was "international."
Coined by Jeremy Bentham, international named a new branch of
law that had until then been represented under the term "law of nations," or
ius gentium, the legal tradition associated with natural law. This new coinage
corresponded to Bentham’s broader intellectual aspirations: to substitute
positivist jurisprudence for "messy" common law and natural law; to clarify
a distinction between internal law and what he now called international law;
and to designate a distinct legal space for the regulation of inter-state relations.
Soon, however, the scope of "international law" stretched backward
and forward in historical time, and the concept began to be used to describe
any set of relations that exceeded a single body politic. Hence it was that
in his 1895 history of international law, jurist Thomas Lawrence wrote that
the "name International Law is much more modern than the system to which
it is applied," suggesting the presence of an international system that preexisted
the words themselves, awaiting a signifier that could finally render
it to conceptual language.
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