1 Skinner in Context

Responding to critiques of her book International Authority and the Responsibility to Protect, Anne Orford in her essay ‘On International Legal Method’ seeks to explain how her approach in that book resembles and also departs from methods of historians in the study of law. In some respects, Orford asserts, her work is ‘informed by the Cambridge school of intellectual history associated with Quentin Skinner’.¹ Yet Orford goes on to explain that her project and approach are radically different from those of ‘historians’ and ‘legal historians’ who ‘align themselves with that contextualist school’.² Whereas historians espouse a focus on ‘policing anachronism’, she follows a legal method developed by ‘lawyers, particularly those … with common law backgrounds’ who have been ‘trained in the art of making meaning move across time’.³

The main thrust of Orford’s critique is that the Cambridge school’s insistence on analysing political thought in context not only has rendered historians reluctant to study how categories of legal thought ‘move across time’ but also has made them volubly opposed to such analysis. According to Orford, lawyers aim at understanding both how ideas developed through time and how they appear and disappear in disconnected moments of time. Studies of law can and must be released from time-contexts as their frame, she argues, because ‘the proper context for understanding the legal meaning of a statement or text is not given, and is certainly not determined by chronology’. For Orford, the ‘proper context’ is political. By ‘policing anachronism’, she asserts, historians erect a barrier between politics and history: ‘To refuse to think about the ways in which a concept or text from the remote past might be recovered to do new work in the present is to refuse an overt engagement with contemporary politics’. Orford states succinctly that ‘history as method’ has produced ‘a conservative effect on international law scholarship’.⁴

It is important to note that Orford has in mind a particular slice of the work of Quentin Skinner when she criticizes the Cambridge School. Skinner’s views are summarized succinctly as an insistence that the proper way to understand a text is to evaluate the author’s intent by analysing speech acts in relation to linguistic conventions of the time. Orford recognizes that the study of texts in context has value, but she laments the shrinking analytical power resulting from historians’ insistence on chronology as limiting the framework for that context. Martti Koskenniemi also references the Cambridge School as an important influence on histories of international law while recognizing the value and also the potential problems of contextual analysis: the challenges of evaluating authorial intent, the insufficiency of linguistic contexts as explanatory frameworks, and the open-endedness of relevant contexts worthy of study.⁵ Even Orford acknowledges that historians and international lawyers have found ‘common ground’ in analysing a variety of texts ‘as political interventions in particular social contexts and political power struggles’.⁶

Where historians diverge from international lawyers, according to Orford, is in historians’ insistence on separating the present from the past. The primary villains of this approach, she finds, are historians who have labelled as anachronistic a strand of critical writings on international law and empire.⁷ The flaw of these historians’ approach grows from the original sin of Skinner’s contextualism, which remains for Orford the crux of the problem. Yet Orford’s reading of Skinner depends very heavily on one set of programmatic statements contained in Skinner’s 1969 work ‘Meaning and Understanding in the History of Ideas’. That essay makes a strong case for privileging the understanding of authorial intent and discovering it through analysis of linguistic context.⁸ Before considering some strikingly different views developed by Skinner later, we should note that Skinner also outlined some points in that piece that contrast with Orford’s understanding of the Cambridge School and that have also held up strikingly well over time.

Skinner’s ‘Meaning and Understanding’ warns of the dangers of assuming the coherence of doctrines and their representation as entities appropriate to serve as contained objects of analysis. Skinner notes that ‘even in the case where a given writer may appear to have articulated a system of doctrines with complete coherence’, we must question ‘the possibility, the conceptual propriety, of treating such a system as a self-sufficient object of inquiry and understanding’.⁹ This insight aligns with subsequent trends – and here I would include Orford’s study of the history of protection – to probe histories of legal and political thought by unspooling intertwining elements of doctrine and analysing their interplay with other conceptual threads to discover their uses, significance, and historical movement. The recent trajectory of intellectual histories of international law in fact assumes the composite and contingent construction of doctrine and its imaginative and selective transposition from one setting and one period to another. Recent studies have also analysed how historical actors – jurists and others – invoke multiple and, sometimes, contradictory strands of legal discourse creatively, shaping discourse in the process, often in non-linear ways. It is widely accepted as a corollary of this understanding of doctrine as fluid and porous that historical actors and authors drew from a repertoire of legal referents depending on the audience they were addressing. Examples of studies in the history of international law echoing these insights include histories of the flexible, combined uses of Roman, canon, and municipal law in territorial claims and studies of the works of key jurists on justifications for war.¹⁰

We must recognize, too, that far from walling off the past, Skinner explicitly sought in ‘Meaning and Understanding’ to address two key problems identified by subsequent critics: the difficulties of tracing ideas and discourse across chronological frames and the seeming lack of connection between historical studies and the political and moral imperatives of the present. The theory of change elaborated by Skinner privileges innovation. Skinner argues that an understanding of linguistic conventions makes it possible to identify the precise ways in which authors in the past were manipulating or altering conventions and, in doing so, modifying political thought. One can question whether this method yields satisfying accounts of intellectual change. One can challenge whether authors’ intentions can ever be sufficiently grasped. One can point to the dangers of conflating the purposeful manipulation of conventions with other forces of change. And one can point out (more on this below) that formative conventions are not merely linguistic.¹¹ One cannot, it seems to me, correctly argue that Skinner’s writings indicate the absence of a theory of change.

Nor does Skinner’s approach back followers into chronological corners from which there is no escape. Skinner also explicitly touted his method, as outlined in ‘Meaning and Understanding’, as capable of informing the politics of the present. We thus find Skinner insisting that the ultimate objective of contextual analysis is to illuminate understandings of the relation between political thought and action in the present. By revealing the conditional creation of particular arrangements or ideological positions about those arrangements, Skinner asserts, we position ourselves to question claims about the timeless or necessary arrangements or positions in the present. We reveal, further, the constraints that currently operate on political imagination. Skinner argues that the most important objective of historical study is to arrive at ‘a lesson in self-knowledge’. He imagines self-knowledge to be emancipatory because it would reveal the limits of constraints on contemporary political thought and action.¹² I will return below to a discussion of alternative approaches developed by historians linking the past and the present; here I simply point out that there is no necessary connection in Skinner’s view between contextual analysis and chronological parochialism.

Indeed, Skinner has for some time come under attack for breaking what appear to be his own rules in focusing on the development of political thought across time. In The Foundations of Modern Political Thought, Skinner set out to trace the origins of a modern understanding of the state in the texts of late medieval and early modern authors. The book exposed Skinner to charges of anachronism for his use of contemporary categories in analysing texts from earlier periods when such concepts were not yet in use.¹³ The critique was potentially far-reaching, given the central importance of the terms taken out of time: republicanism, constitutionalism, humanism, absolutism, and, for that matter, states and sovereignty.¹⁴ Related observations were that Skinner had drawn contexts too closely, ignoring the influence of empire and focusing more on the internal attributes of constitutionalism than on theories of supra-polity ordering effected by either the church or systematic referencing of natural law.¹⁵

These critiques did not, for the most part, insist on a full-scale rejection of Skinner’s approach but on balance recommended understanding his contributions as consisting in the explication of a heuristic stratagem rather than the founding of a new methodology. Variants of this assessment have surfaced. Historians sympathetic to Skinner suggest that we understand his work as promoting analysis of texts in linguistic context without forcing the conclusion that this is the only way to surface meaning in political thought. For many, the simple trick for turning Skinner’s contribution from defence of a specific methodology to illustration of a perspective is to propose an indefinite widening of analytically relevant contexts.¹⁶ Numerous works, some but not all by Skinner’s students, have utilized such broadly contextual approaches, only selectively applying Skinner’s more narrowly constructed methods of linguistic analysis, to powerful effect. Far from spending their time ‘policing anachronism’, the studies aim to trace change in discursive trends, explicitly drawing comparisons in some cases across long chronological spans.¹⁷

Another variant of this reading of Skinner is less flattering. It holds that Skinner’s work is persuasive precisely because it is not very innovative. Instead, he simply follows interpretive strategies that most historians would identify as commonplace scholarly tactics. Older intellectual historians examining some of the same texts as Skinner had arrived at virtually the same conclusions by tracing influence from one author to another, in effect already performing ‘contextual’ (or inter-textual) analysis and documenting innovations in discourse.¹⁸ One implication is that works in which Skinner hones closely to analysis of texts in linguistic context, such as his study of rhetoric in Shakespeare, paradoxically appear both more original and less significant than writings in which he is less faithful to a narrowly conceived methodological program.¹⁹ Even within this critique, Skinner is saved from irrelevance not only by mere virtuosity and erudition but also by his success in showing, with some precision, that innovations in language and image-making served to define and defend legitimate political authority.²⁰

This brings us full circle to the point that only a narrow and selective reading of Skinner would support using his name as shorthand for a version of contextualism that would expose us to the twin dangers of antiquarianism and political conservatism. It is easy to see how this error came about; critics are correct – and here plenty of historians agree with international lawyers – that Skinner’s methodology, if strictly followed, limits (without eliminating) the value of his work for the history of international law. Yet taken in the context – forgive the phrase – of all his writings, including the most influential, Skinner’s recommendation to pay attention to linguistic conventions has much merit. This is not least because, like other forms of law, international law operates through the generation, recording, and interpretation of documents, such that one established and valid approach to the history of international law begins by investigating the circumstances in which such documentary law has been produced, received, interpreted, and also transposed into new contexts of use. To some, Skinner will remain a philosophically inclined historian illustrating interpretive strategies that can contribute to the study of political discourse across a wide variety of settings. To others, he is an extremely skilled intellectual historian in a familiar mould highlighting the importance of ideology and legitimacy in the rise of the state. Neither profile poses the kind of danger to the history of international law, or even to the causes of self-styled emancipatory scholars, suggested by Orford’s warning.

If Orford creates a straw man in Skinner’s supposed methodological commitments, she does the same in vilifying historians allegedly calling out anachronism as a sin. Comments about anachronism typically fit within broader critical interventions. For example, Ian Hunter’s criticism of scholars who have characterized European jurists as apologists for imperialism reduces to an accusation of anachronism only if one ignores his main point, which is not in fact narrowly historical. Hunter argues against the assumption (in any period) that universal standards exist against which we can or should measure the correctness of juridical tracts.²¹ This is a perspective shared by recent influential studies such as Samuel Moyn’s account of the history of human rights and Jennifer Pitts’s analysis of the patchy and historically contingent universalism of nineteenth-century European political thought.²² Also thrown in the camp of anachronism-policers, Randall Lesaffer advances the relatively innocuous methodological recommendation to use evidence-based findings of the past to inform legal analyses of the present in what he describes as a two-step process.²³ Such critiques incite controversy only if one holds that historical evidence does not matter and that historical studies need not take account of it. I will return to questions of evidence after establishing that Skinner is hardly alone in imagining that it is possible to combine evidence-based history and theoretically powerful approaches to the past, including using these methods to construct windows on the present.

2 Socio-Legal Histories of Global Law and Order

An incomplete view of contextual historical analysis is only part of the problem with Orford’s critique of historical methods in international legal history. A more fundamental limitation arises from Orford’s narrow sampling of approaches to historical inquiry, an assumption implicitly accepted by some of her interlocutors. Put simply, positioning the Cambridge School as representative of historical analysis distorts understandings of what a great many, if not most, historians do. New histories of international law have taken inspiration from traditions of history writing outside the Cambridge School, even if some of the authors operating within these other perspectives also align themselves with heuristic variants of contextual history. Here I will discuss just two such perspectives, one arising from social history and another with roots in historical social sciences. Both have been instrumental in guiding historians of international law to consider the contributions of historical actors and authors outside elite and Western circles, and both have helped to situate the history of international law as an inquiry related to the historical study of global order.

An influential Anglo-American strand of legal history grew out of post-war social history and emerged alongside the Cambridge School. Skinner offered a critique of an earlier Marxist approach to political thought as super- structure, or, as he put it, as epiphenomena determined by supposedly deeper structures of social relations.²⁴ He was not especially interested in socio- historical methodologies, and he was in any case hampered by the fact that he was writing at a time when the self-criticism of neo-Marxist historians, together with the influence of Foucault and other poststructural theorists, was still in progress and actively leading social historians away from a determinist view of political thought. The publication of two books in 1975, an edited volume on eighteenth-century English crime and society, Albion’s Fatal Tree, and E.P. Thompson’s study of legal politics in late eighteenth-century England, Whigs and Hunters, marked a key moment in the development of scholarship merging social history perspectives and legal history (it is worth noting, too, that Foucault’s Discipline and Punish appeared in the same year in English).²⁵ This literature may seem limited to influence on legal history centred in the domestic sphere and therefore less relevant to the history of international law. Yet several dimensions of socio-legal historical approaches presented theoretical and methodological reorientations that profoundly influenced the field.

The new legal history emphasized the way categories of knowledge were produced and meaning was generated through the experience of conflict. E.P. Thompson’s insistence that meanings of ‘class’ emerged through the lived experience of historical actors exemplified this approach.²⁶ Thompson extended the perspective to legal history in two ways. First, he argued that historians should consider lived experience and actions technically outside the legal sphere as powerfully formative of ideas about justice and enforcement. His quintessential example was the food riot as an event that both reflected and helped to generate a plebeian ‘moral economy’ entailing politically significant and often very specific notions of justice. Thompson developed this perspective further in Whigs and Hunters, where he characterized elaborate poaching rituals (‘blacking’) as punitive actions responsive to poachers’ legal logic and their understanding of customary and state law. In a controversial conclusion to that work, Thompson argued that plebeian perceptions of the slim possibility of just outcomes in state-run courts created a logic for deference to those courts, despite clear evidence that their main function was to reinforce state authority as a proxy for elite power.²⁷

Key to Thompson’s work, and to that of many of his students, was the proposition that historical actors were not just responding to pre-formed and already circulating political ideologies. Nor were they (in Skinnerian fashion) necessarily making innovations by altering textual conventions since they were also, and sometimes primarily, operating within and modifying forms of social and political organization and action. For Thompson, social history was an operation of recovery of the lives and ideas of non-elite actors. Their strategies, and the lived experience of those strategies, gave rise to new political thought and, at the same time, helped to reshape institutional arrangements. Thompson railed against orthodox Marxists for regarding experience as determined by structures and for assuming that political thought was produced only by elites. Experience, he insisted, ‘does not arise without thought; it arises because men and women (and not just philosophers) are rational, and they think about what is happening to themselves and their world’.²⁸

We should not fetishize Thompson’s approach, which some students turned into a lightly romanticized search for signs of proto-revolution (in their own exercise of anachronism) and some critics found reductionist in its treatment of culture. Postmodern theorists who characterize culture as performative, fragmentary, and often contradictory developed perspectives that clashed with elements of Thompson’s emphasis on rationality. We cannot survey these trends here, but we can insist on taking into account the methodological implications for legal history of the turn to both socio-legal politics and cultural- legal practice as objects of analysis. One result has been the imperative to study the production of political thought by analysing not just texts but also actions – following the example of regarding the food riot, poaching, and other encoded political actions as part of legal change and recognizing that only the thinnest of lines separate cultural practice and legal strategy. This approach mirrors the orientation of intellectual history toward treating any text as itself a form of action or mode of intellectual work. A further implication flows from the observation that institutional arrangements could rely on silences and ‘studied ignorance’ about the bare power dynamics at play in political and legal conflicts.²⁹ This proposition challenges the idea that the production of legitimating ideologies constitutes the main object of analysis for the study of political thought, and of legal history. The relation of ideas and law to the legitimation of state authority was often oblique, and of secondary importance to other motivations and effects. Socio-legal history is of course further associated with a move toward ‘history from below’, a powerful endorsement to recover the strategies of diverse legal actors, including the contributions of non-elite groups to both political discourse and institutional change. Taken together, these moves within socio-legal history can be characterized as the recognition of ‘legal politics’ as a broad object of analysis encompassing discourse, legal strategies, and institutional arrangements. Socio-legal history has exerted its most immediate influence on the study of domestic legal politics, in particular criminal law and criminality, with links to new imperial and postcolonial research on crime.³⁰ Related inquiries in legal history have contributed to an emergent interdisciplinary literature on the state as an institutional composite, or bundle of practices shot through with ‘ambiguities and hierarchies’.³¹ Important and growing strands of this literature investigate the national state as an administrative and regulatory framework.³²

Yet it would be wrong to conclude that the influence of socio-legal approaches has not extended to global legal history. By highlighting fluid institutional structures and historicizing the rise of state legal hegemony in plural political and legal orders, the perspective has informed research in imperial history, has encompassed the study of global political formations and discourses, and has contributed to the emergence of a new field of global intellectual history. It has also suggested new ways of understanding the relation of municipal law and international law through analysis of processes shaping and spanning both. Socio-legal history has further guided research in international law by locating the emergence of global legal regimes in widely recurring patterns of jurisdictional politics. In Law and Colonial Cultures (2002), for example, I argued that jurisdictional conflicts represented a particularly important object of analysis in global legal history, both for their mutually formative relation to cultural practice and for their effects on institutional ordering. In defending the legitimacy of some jurisdictions over others, historical actors invoked their membership in religious and political communities, while also at times calling for stronger imperial or colonial state legal authority to enhance predictability of legal outcomes in plural legal orders. Similarly styled clusters of jurisdictional conflicts across different settings and polities, including some with substantively very different legal traditions, produced global patterns of institutional change.³³ Uncovering jurisdictional conflicts requires the methods of socio-legal history and links to histories of political thought in showing that concepts once thought to have emerged exclusively in Western Europe, including the idea of the state, developed globally.

Subsequent studies of sovereignty, both in and outside Europe, have further probed the rootedness of state legal hegemony in conflicts over jurisdiction in plural legal orders. Lisa Ford traced the effects of struggles over criminal jurisdiction in Georgia and New South Wales on settlers’ ideas about sovereignty.³⁴ Her findings aligned with the work of historians analysing the ways in which imperial legal politics both drew on and reinforced representations of sovereignty as fragmented and layered, as well as productive of uneven territorial legal control and ‘anomalous legal zones’.³⁵ This perspective has contributed to revised understandings of nation-state formation and imperial sovereignty as well as new narratives of the rise of the interstate order. It has also marked a definitive shift from European-focused to globally distributed research on institutional change. The result has been an outpouring of studies, especially in imperial legal history, that begin not with the writings of jurists but with analyses of such processes as the acquisition of territory, diplomacy, treaty making, indigenous legal strategies, the politics of extraterritoriality, the formation of global prohibition regimes, regional regulatory shifts, jurisdictional tensions related to quasi-sovereignty, and other phenomena.³⁶ As with writings on sovereignty, these studies overlap with intellectual history in repositioning core concepts in international law such as rights, universalism, and humanitarian intervention and in developing new takes on the history of liberalism and constitutionalism.³⁷

This new research has obvious links to a second influential tradition of historical study arising from social science analysis of the history of the international order. Once again, we are referring to a literature that developed alongside the Cambridge School, with strikingly similar timing. The mid-to-late 1970s saw the publication of the first volume of Immanuel Wallertsein’s The Modern World System (1975); Hedley Bull’s The Anarchical Society (1977); key works in comparative state formation by Tilly (1975), Skocpol (1979), and others; and influential books in new institutional economic history, for example by Douglass North (1973).³⁸ Together the trends sparked by these contributions effected a resolute turn toward the history of the global order – an object of study different from though explicitly related to the history of international law. Intersecting with Koskenniemi’s findings in A Gentle Civilizer, this interdisciplinary project encompassed critical analysis of the interstate order as a contingent and relatively late development, and investigated empire as key to shifting visions of global order.³⁹ Looking backward, historians working in a similar vein have revisited standard narratives of relations among polities before the nineteenth century, arguing for globally occurring patterns of legal action as a framework for interpolity law before the nineteenth century.⁴⁰ Looking forward from the high imperialism of the end of the nineteenth century and its moment of professionalization in international law, scholars have highlighted the persistence of composite polities and neo-empires like the United States and have analysed hegemony as a built-in feature of the international legal order.⁴¹ As with social history, both moves feature the study of repeating patterns of smaller-scale political, social, and economic events and conflicts, and their assemblage into broad structures and systems.⁴² The reexamination of standard narratives of the development of international law connects organically, too, to questions of representations of history in international law.⁴³

Given the richness of the literatures resulting from these interconnected lines of inquiry, it is disconcerting to see them overlooked in favour of a singular emphasis on the Cambridge School in order to provide a straw man for critiques of historical approaches to international law. The choice of these particular blinkers surely has something to do with a lingering assumption that the history of international law is necessarily akin to – or merely a variant of – intellectual history. As I have shown, it is not. Moreover, intellectual history itself encompasses many more approaches than those endorsed by the Cambridge School, including some explicit attempts outside the fields of history and law to reinterpret colonialism in relation to global legal and political thought.⁴⁴

Recent writings on empire and law by international lawyers, and also some by historians, have unfortunately compounded some of the problems that come from sidelining socio-legal historical approaches. The somewhat disconnected follow up to some of the arguments of so-called TWAIL scholars is an example. Consider the responses to one of Anghie’s key contributions, his observation that late nineteenth-century European international lawyers struggled to reconcile the persistence of empires, and in particular quasi- sovereignty in empires, with a model of international order constructed by and for nation-states.⁴⁵ Anghie’s work stimulated research by imperial historians on the jurisdictional tensions and imperial policies underpinning quasi-sovereignty in empires.⁴⁶ Some international lawyers, meanwhile, followed Anghie’s lead in continuing to probe empire and quasi-sovereignty as an intellectual challenge for jurists, now broadening the subject to include the writings of non-European elites.⁴⁷ These research agendas proceeded on parallel paths, and by continuing to treat empire and quasi-sovereignty mainly as intellectual puzzles, international lawyers retained a tendency to relegate histories of imperial legal politics to the separate, seemingly less consequential category of ‘technologies’ of imperial management.⁴⁸ Meanwhile, some historians have helped to perpetuate the artificial separation of intellectual history and the study of legal politics. Fitzmaurice, for example, criticizes socio-legal historians for a lack of interest in juridical writings, a claim that ignores these historians’ deep engagement with the interplay of action and ideas, and their efforts to propose new ways of connecting legal practice and thought.⁴⁹

In fact, the case for studying conflicts as productive of political thought is by now very clear. Benefits of this approach specific to the history of international law are also not speculative. At the most basic level, studies of legal politics have enriched and in some cases altered the analysis of the works of individual European writers, including Vitoria, Gentili, Locke, Grotius, Maine, Bentham, and Twiss.⁵⁰ Cambridge-influenced historians, socio-legal historians, and international lawyers have joined in their efforts to evaluate the influence of global legal patterns on what has been traditionally regarded as the canon of the history of international law. For example, in assessing the influence on Grotius of Dutch strategies in the East Indies, scholars have carefully uncovered what information from Dutch East India Company (VOC) correspondence was accessible to him and how his arguments related to the politics of Dutch overseas ventures, including legalities of maritime engagement far from Europe. Similarly, in probing the effects of Maine’s East India Company service on his writings about sovereignty and quasi-sovereignty, historians have argued that the controversies Maine addressed while in EIC service drove his understanding of key elements of international law. The question of influence has been explored, too, in the other direction. Historians have assessed the impact of circulating ideas about Roman law on imperial agents’ rituals and pronouncements about claims to territory, and they have traced ideas about divisible sovereignty on the politics of federation, independence movements, and constitutions in the Americas and elsewhere.⁵¹

A second contribution is more often overlooked. New kinds of global intellectual history have widened the groups and sources regarded as responsible for the development of international legal thought. The creative and ad hoc arguments of imperial agents and subjects, the circulation of ideas among elite and non-elite groups and individuals, and the quick responses by even the most vulnerable actors to legal opportunities and arguments – such phenomena now comprise fundamental materials for global histories of law. Studies in this vein depend on recognition of not just the iterative relation between theory and practice but also the way political knowledge and legal argument could take the form of vernacular political thought.⁵² While many historians continue to probe the ways in which the discourse and strategies of subordinate groups and even illiterate actors affected elite formulations and guided institutional shifts, others uncover vernacular legal knowledge and seek to place it closer to the centre of the history of international law.

A third facet of the mutual constitution of practice and theory, or of structure and discourse, relates to histories of global ordering. Attention to ‘visions of global order’ emerging alongside shifting international structures has generated new understandings of global processes and phases, including contemporaries’ actions within international institutions such as the League of Nations and the United Nations.⁵³ This line of inquiry is consistent with international lawyers’ efforts to study the historical development of institutions, and it also complements socio-legal histories that look for juridical meaning and institutional shifts as emanating from clusters of legal conflicts.⁵⁴ The more studies along these lines we possess, the more unsatisfying it seems to perpetuate older traditions of the history of international law and to privilege the kinship between international law and one strand of intellectual history.

It is also insufficient to characterize new histories as mere variants of the Cambridge School, and to present them as simply expanding the range and variety of the contexts of philosophical and legal commentary. New directions in research do not flow either from reading Skinner, well or badly, or from simply expanding contextual elements of explanation. Responding critically to Marxist and Namierite versions of contextual reading, Skinner questioned whether determinist study of social context could ever be sufficient to illuminate textual meaning, while conceding that such analysis might be an aid to discerning the performative dimensions of discourse.⁵⁵ But Skinner’s critique focused narrowly on analyses seeking a causal relationship between social conditions and discourse. It would be difficult to find anyone writing today who would become a target for such a critique by arguing that ‘puzzles about actions may be resolved simply by stating the conditions of their occurrence’.⁵⁶ As Skinner’s students and others have developed increasingly varied and inventive approaches to understanding the relevant context of political thought, and have adapted philosophical and discursive approaches from across the disciplines, they have made Skinner’s objections to ‘epiphenomenal’ analysis irrelevant by learning this lesson. Still, their work remains incomplete without complementary efforts to unravel the generative effects of political and legal conflict and projects of ordering. Indeed, jettisoning the results of scholarship across this wider array of perspectives would result in an absurd and counterproductive hollowing out of the history of international law. To be sure, it remains possible to do both contextual analysis poorly and to study the generative effects of legal conflicts mechanically. It will remain important to evaluate such work by judging the veracity of claims advanced about historically occurring trends and processes. Here, the standards of historical evidence and argument will continue to matter – something I discuss below after turning back to some questions of social theory at the heart of debates about the value of historical methods.

3 Conclusions

If we adopt, as I suggest here, a more complete and nuanced view of the Cambridge School and recognize the influence of socio-legal approaches to writing histories of law, the problems identified by Orford in historical studies of international law tend to disappear. The charge that historians are unproductively committed to ‘policing anachronism’ appears overblown, even with regard to historians who self-describe as influenced by Skinner. The prohibition historians supposedly favour on relating past and present is also eclipsed by a record of historians’ work toward refining analytical approaches and theoretical frameworks for understanding international legal change. Even the subject matter of many legal historians’ research is directly related to the goal of analysing the interface of law and politics. Historians influenced by socio-legal methodologies argue for the mutual constitution of politics and law, and many identify ‘legal politics’ as their object of study. Empirically minded and theoretically attuned historians of varying perspectives share an interest in using historical studies to develop or test analytical strategies that can yield insights across different periods and regions.⁵⁷ It becomes difficult or impossible to locate a supposed requirement of historical method to follow a theory of legal change that is narrowly incremental and, therefore, makes historians either incapable of placing the present and the past in the same analytical framework or forces them to remain in denial about the influence of present politics on the questions they ask about the past. As I have tried to show, historical studies aim in part at revealing the formative effects of conflicts on institutions and ideas, and at taking cognizance of the full array of sites where vernacular political thought is created and effective political action originates. Such moves are deeply relevant to understandings of the present. They also may not go far enough for some. Here it may be valuable to take up Orford’s misplaced critique as a challenge to provide greater clarity about global legal history as an intellectual project in order to identify the most promising directions for research on the history of interpolity and international law. This refined critique would include admitting some of the limitations of historical inquiry, whether performed by lawyers or historians and regardless of methodology, as a vehicle for politics. Its greatest contribution to the politics of the present will continue to be to provide improved explanatory, analytical, and narrative frameworks for understanding, evaluating, and informing political positions and strategies, whether rhetorical or expressed in action.

Fortunately, there remains plenty of evidence of the promise of a shared intellectual agenda across disciplines operating within these limitations. I want to highlight in particular three valuable analytical strategies informed by historical research by both lawyers and historians. Histories of international law shaped by socio-legal studies and histories of global ordering, it turns out, complement work by international lawyers to recast international law as a matrix of administrative procedures and networks.⁵⁸ In Rage for Order, for example, Ford and I document ‘the law-producing capacities of imperially organized networks and practices’. We trace interlocking changes in policy and practice as emergent regulatory frameworks and provide several kinds of examples, including inter-imperial prohibition regimes against the slave trade and piracy, and the imperially encouraged proliferation of new sovereignties resulting in new regional legal regimes. The result is to ‘shift attention away from a search for the origins of principles of international law in the nineteenth century to an account of constitutive patterns of global legal politics’.⁵⁹ The emerging picture of the early nineteenth-century global legal order complements international lawyers’ image of international law as constituted through diffuse administrative practices and networks in the twentieth century and beyond.⁶⁰ This methodological meeting of the minds brings us in sight of a new project in the history of international law in which regional and global institutional formations generated and activated through legal politics materialize as clear objects of historical inquiry.

Understanding how such formations arise, operate, and change requires a second move: investigating the relation between law ‘inside’ and ‘outside’ political communities. This problem has also cut across the work of lawyers, intellectual historians, and socio-legal scholars. Annabel Brett’s Changes of State explores the way scholastic writings about the city as commonwealth implied the political community’s reach beyond its borders, Brett directs our attention to the ‘inside/outside’ problem as one deeply embedded in representations of the global legal community. Lisa Ford and I have used Brett’s suggestive framing of the inside/outside problem in examining efforts to fashion empire as a single, internally coherent legal order while simultaneously imagining it as a system of states resembling the international order. This is a historical finding that packs a chronologically open-ended punch. Rather than asserting a necessary relation between domestic political order and interpolity law, these works facilitate connections across historical periods by uncovering a productive tension, revealed in different forms, that insists on a place for municipal law and legal politics in the making of interpolity or international law. A similar approach can produce valuable findings in other settings and periods, too – including in the present. For example, Kim Scheppele’s study of the global ‘war on terror’ represents the international order as a system constituted by a series of repeating and structurally similar domestic political and legal agendas to strengthen repressive controls on immigration, information sharing, and expression.⁶¹

A third key analytical move involves challenges to traditional chronologies in the history of international law. Here again there is more overlapping of interest across disciplinary boundaries than one might think. The patterns revealed by socio-legal studies aimed at illuminating global ordering suggest different transition points as well as continuities that distribute in non-linear ways across time. One intervention along these lines was Koskenniemi’s Gentle Civilizer of Nations, which insisted that the late nineteenth century marked a period of distinctive development in international law because of novel trends in the professionalization of international lawyers and their dogged commitment to link the science of international law to the interstate order. Lisa Ford and I make the case that the early nineteenth century marked an especially formative period when the relative quieting of natural law arguments coincided with a phase of strong imperial advocacy of systemic global ordering. Other examples with significant implications for histories of international law reconfigure the narratives of rights discourse, global humanitarianism, and legalities of rebellion and territorial annexation.⁶² Such contributions argue for replacing a linear history running from the jus gentium to natural law to positive international law. We should resist the temptation to view such studies as minor corrections, or as limited historicist interventions made to rectify errors in periodization. They go much further and reflect broader reorientations of questions about the relation between legal politics and international order, and between international law and universalism. The latter topic has drawn the attention of historians who trace the uneven development of the idea of universalism in international law, and it also connects to a project to characterize global legal interactions before the nineteenth century, in a long period of inter-regional communication and commerce when various sources of law, including the jus gentium, influenced European imperial agents without extending to a much larger non-European controlled world. Efforts to identify the elements of interpolity law that helped to guide cross-polity relations in this long pre- and early modern period require uncovering historically occurring cross-cultural legal practices without advancing dubious claims about their universal character.⁶³

It is important to state clearly that historians contribute much more to these projects than merely a broader contextualism. To be sure, contextual analysis retains its relevance and usefulness. When we analyse the fluid frameworks within which historical forms of legal thought are received, interpreted, and put to work, the investigation can lead to surprising connections and reveal hidden patterns of influence; such findings continue to move the field forward. Yet historical inquiry also extends beyond these subjects and approaches. To a significant degree, new histories of global law represent the institutional makeup of legal regimes not merely as influences on international or interpolity law but as actually constituting law. As historical actors experience, describe, and establish as routine certain sets of legal practices and strategies, they generate cultural and behavioural patterns and expectations that may attain the character of law and legal institutions. This view of law as habitus was largely absent from Skinner’s writings, and his critics have also missed its possibilities. The new histories of international law adopting such a perspective urge a subtle but decisive shift away from a view of international law as the instantiation of norms of the global legal community – norms that can somehow be discovered through studies of intellectual or doctrinal trends.⁶⁴ In the same sense that Thompson argued for the rootedness of political thought in lived experience, we can seek to understand law (and legal norms) as emerging through and in the experience and definition of legal and political conflict. In this sense, histories of international law have the capacity to alter what we understand international law to be. Such an assertion brings us very far from the view of contexts determining ‘epiphenomenal’ political thought that Skinner critiqued. They also bear little resemblance to the conceptual clumsiness of the time-bound historians imagined by Orford (whoever they are) who are presumably unable and unwilling to analyse legal politics across chronological barriers. As Skinner suggested in a different way in commenting on the relevance of linguistic contextual analysis for an understanding of the limits on present political and legal discourse, the new histories of international law have the potential to unlock understandings of the mutual constitution of law, ideology, and power in the global order of any period.⁶⁵

Collaboration on these projects will not go far unless lawyers and historians can agree on some shared criteria for evaluating historical research. Orford is certainly correct, if not especially original, in noting that historians and lawyers are trained to ask questions differently. While informed by their own lived experience and individual political positions, historians are trained to generate questions about change in the past (though as we have seen, the same questions may hold great potential for illuminating the present). An important faction of their audience includes experts in history who will scrutinize their use of evidence and the accuracy and subtlety with which they represent historical processes, phenomena, and trends. Whether they are historically trained or not, lawyers are conditioned to mine the past for support of legal positions in the present. They are trained to be specific about the present problems they are seeking to unlock, and their audience of scholars and practitioners gives them licence, as Orford points out, to draw selectively, and in non-chronological order, from past cases and discourses. We should not paper over these differences. They mean that historians and lawyers may not find the same historical analyses interesting in the same ways, or to the same degree.

Even as differences in approach remain, however, it is also true that no methodology, whether favoured by historians or lawyers, inoculates its users against bias or provides them automatically with moral high ground. Historians come in multiple politically aligned shapes and sizes, while lawyers’ methods contain dangers of their own. Legal historian Robert Gordon observes that lawyers’ habit of mining the past in support of present positions can lead them to emphasize historical continuities and to use history to lend legitimacy to present political and legal arrangements; flipping Orford’s concerns on their head, Gordon worries that legal history written by lawyers can have a conservative effect on history writing.⁶⁶ Certainly insistence on the normative validity of political perspectives informing historical research can have unintended consequences. We should not forget that selective readings of history produced by any method can support reactionary as well as progressive causes.

Happily, historians and lawyers can find a settled foundation for at least two elements of a shared enterprise that do not require particular methodological commitments. One lies in the pursuit of evidence-based history. Regardless of their training and the questions they prefer, scholars must provide support for assertions and interpretations about the past in forms that can be verified and evaluated by others. Opening authors’ statements and interpretations to challenge on the basis of contrary findings is a necessary shared commitment, though not an absolute guarantee against historical distortions. Without this commitment informing their work, writers are doing something other than writing history. This position should not be confused with the argument that history writing cannot be inspired by political intent or with the idea that historians write without the influence of political engagement in their own time. But the substance of claims about the past, including interpretive statements, should not be dislodged from reasonable measures of truthfulness, however imperfect we know them to be.

A second, related commitment is to analytical coherence. To devise sharper analytical tools for understanding legal politics, institutions, ideologies, and legal cultures is an objective central to good legal history writing – and also to its potential use in evaluating political action in the present. The goals of refining and demonstrating powerful analytical approaches may not satisfy everyone. They represent, however, a fundamental part of what historical inquiry has on offer. In the sense that, as Skinner noticed, understanding can itself be emancipatory, the results are not insignificant. When historians fail to make analytical approaches explicit or stop short of formulating conclusions about how their findings bear on broader questions, they open themselves to criticism – not of excessive contextualism, but of producing work that is dull or trite. Yet it is also true that lawyers may easily overlook analytic interventions informed by unfamiliar historiographic debates and theoretical perspectives. They should not assume that historians of international law operate within a single methodological framework or aim at anything less than advances in critical thinking related to the history of international law.

Recognizing these shared goals will help us to put contextualist approaches in their place. In its broadest sense, contextualism in history stands for nothing more than a commitment to empirically careful study that treats political thought as an activity open to investigation and interpretation alongside other historical phenomena. We can practise elements of the approach while still aiming at potentially far-reaching analytical refinements and pursuing theoretically informed questions through historical research. As I have argued here, contextual analysis does not exhaust the possibilities of historical inquiry. It is essential to recognize the influence and potential of socio-legal and institutional analyses for research in the history of international law. Regional legal regimes, interpolity legalities outside European control, patterns of legal pluralism that frame relations across polities, the productive tensions between municipal and international law, histories of order and rights, the relation of imperial to international law, the evolution of state and public legal authority, the definition and regulation of property and markets – these topics have advanced in significant ways as a result of the shared work of legal historians and historically minded lawyers. Fortunately, the imagination and methodological rigour required to continue to nurture interdisciplinary inquiry are already within our grasp. Historical methods enhance rather than confine this shared agenda.