381

18
What Should International Legal History
Become?
Martti Koskenniemi

A student asked me the other day: ‘does the historicization of something mean that
this something is dead?’. The occasion for the question was produced by the launch
of a new volume edited by Miia Halme and Pamela Slotte, Revisiting the Origins of
Human Rights (Cambridge, 2015). The essays in that book arose from the increased
interest since Samuel Moyn’s 2010 Last Utopia, in trying to understand the origins
and intellectual history of the human rights phenomenon.1 Does this mean that
human rights are now dead? The suspicion is not hard to understand. Why tell sto-
ries about something instead of engaging in that something? Why look backwards
instead of forwards? Histories of, say, revolutions are told only as the bland normal-
ity has set in, when former revolutionaries sit down to revisit past struggles, to talk
about comrades absent and present, and to reflect on the loss of the revolutionary
spirit. If the pull now is to looking backwards, does this mean that the project is
over, that nothing is visible ahead, or perhaps that one finds oneself in an unfamiliar
place and wants to know: ‘how did I get here in the first place?’. When does the
need to understand or remember overweigh the need to keep going?
I do not think that the need to think historically about something necessarily
signals the death of that something. When the need to think about the historical
context of the life of Jesus arose at the beginning of the nineteenth century, it raised
a profound concern among the believers. Does not the very search for a historical
understanding mean that one has lost faith? More worryingly, might not portray-
ing Jesus as a historical figure destroy even the possibility of spontaneous faith? As
it turned out, Christianity did not ‘die’ with the sensational publication of David
Strauss’ Das Leben Jesu in 1835.2 Of course, many pious Christians were shocked.
Strauss was accused as a ‘modern Judas’. But the shock wore away, and historical
studies of the Bible became gradually a respected part of the theological curriculum
everywhere.

1  Samuel Moyn, The Last Utopia: Human Rights in History (2010).

2  David Friedrich Strauss, Das Leben Jesu, kritisch bearbeitet (2 vols., 1839).

What Should International Legal History Become? Martti Koskenniemi. © Martti Koskenniemi, 2017.
Published 2017 by Oxford University Press.
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382 Martti Koskenniemi

But the wish to historicize a set of ideas—​human rights, Christianity, international
law—​is likely to signal some concern, some malaise about the pursuit of those ideas.
For instance: how come there has been so little progress recently? The concern would
not be about external obstacles; those might lead to a closing of the ranks and an
even more determined pursuit of the project. The worry is likely to be internal to the
set of ideas themselves. Does the lack of progress result from disagreements between
adherents? Might there be something wrong in those ideas? What are they supposed
to be, after all? Historicization may signal that all is not right, or at least as it used to
be, among the believers. Taking a break is needed. This would be history as therapy.
I suggest the turn to history has to do in part with a sense of international law’s
present ineffectuality, if not irrelevance, in view of present ‘crises’, in part from
doubts about the international legal ‘project’ itself. What is that ‘project’? If ‘frag-
mentation’ signals the collapse of a firm centre in the law, how to choose from the
many specializations, the many projects that compete under its name? Is interna-
tional law a cure to the world’s ills—​or perhaps (at least in some of its forms) a part
of those ills itself? It seems to me that the malaise has to do with the difficulty of
understanding the complex relationship between international law and interna-
tional power. How to have a better grasp on power? Might history illuminate the
ways in which law has been used in the past to structure, support, channel, and
oppose international power? ‘Power’ is of course a complex, many-​layered notion.
So is the concept of the ‘international’. I would like to propose that in case inter-
national lawyers do feel the urge to have a better grasp of power, then they must
develop a more complex and many layered concept of international law itself.
In this chapter I argue that the scope of history of international law ought to be
expanded beyond its received sense. If the interest lies in ‘power’, then it is not a
surprise that international lawyers might worry about the state of their field. For
history to grasp this worry, it should illuminate the process through which some
things come to be understood as belonging to ‘international law’ while others are
relegated to ‘domestic’ or ‘private’ law, to ‘political economy’, or indeed to ‘interna-
tional politics’. A study of international law’s relations to international power would
need to include an examination of the way such categories, professional fields, and
intellectual distinctions are made and remade so as to determine what may seem
possible to achieve and what is beyond professional argument and contestation.

Much recent writing about international law’s past has been inspired by a postco-
lonial interest.3 The relationship of law to European empire and expansion—​not
necessarily identical phenomena—​has been subjected to increasing scrutiny. What
role did international law and international lawyers play in the creation of formal

3  The trigger for that work has been Antony Anghie’s Sovereignty, Imperialism and the Making of
International Law (2003).
 38

What Should International Legal History Become? 383

empire at the close of the nineteenth century? Legal notions such as occupation
and conquest as bases of European territorial rule have become fruitful topics of
research.4 Natural law is no longer thought as a uniquely pacifying language but
also as a repository of large justifications for war and dispossession.5 Political and
legal historians were always drawn to ‘humanitarian intervention’ as a particularly
intriguing topic. It continues to be such today, while attitudes to the beneficial
character of Western humanitarianism have become increasingly ambivalent.6
Historical treatments of genocide and crimes against humanity have often been
concerned to explore the question of apologies, compensations, and the politics
(and law) of memory. The development of economic law and the laws surround-
ing international investment are likewise being treated historically, with special
attention to their colonial dimension.7 On-​going re-​examination of the interwar
period may also be connected with a post-​colonial interest—​the rise and fall of the
mandates system provides a fruitful platform on which to examine the transforma-
tions of imperial rule.8 So does the examination of the strategies of non-​European
jurists in the early twentieth-​century international institutions.9 New research is
also directed to the first decades of the United Nations. Scholars are keen to under-
stand what happened to the early embrace by international institutions of the ‘New
International Economic Order’, including such connected projects as technology
transfer to the third world and the distribution of proceeds from the extraction
of seabed mineral resources at the law of the sea conference (1974–​1982). Where
did ‘permanent sovereignty to natural resources’, UNESCO’s ‘new international
information order’ or the commodity agreements once imagined as the centre of
international development, disappear?10
Much of this new work is fed by present-​day concerns; it is history ‘of the pre-
sent’. As the United Nations celebrates its 70th anniversary, many of the organiza-
tion’s declared objectives—​the creation of a more just and peaceful world seem no
closer than they were in 1945. Global inequality is rising—​according to studies
carried out by Oxfam and Credit Suisse last year, one per cent of the world popula-
tion owns more than the remaining 99 per cent combined, and that 69 per cent of
that wealth lies in Europe and North America with a share of world population of
only 18 per cent.11 War in the Middle East has led to a refugee problem unforeseen

4  A recent work is Andrew Fitzmaurice, Sovereignty, Property and Empire 1500-​2000 (2015).
5  Apart from Anbghie above, see also Richard Tuck, The Rights of War and Peace. Political Thought
and the International Order from Grotius to Kant (1999).
6  See e.g. Anne Orford, International Authority and the Responsibility to Protect (2011).
7  Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding
of Capital (2013).
8  A good example would be Susan Pedersen, The Guardians: The League of Nations and the Crisis
of Empire (2015).
9  See Arnulf Becker Lorca, Mestizo International Law:  A  Global Intellectual History 1842-​1933
(2015).
10  Sundhuya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics
of Universality (2013); Luis Eslava, Michael Fahkri, and Vasuki Nesiah (eds.), Bandung, Global History
and International Law: Critical Pasts and Pending Futures (2016).
11  ‘Having it All and Wanting More, Report on Inequality 2015’, Oxfam, 19 January 2015, <http://​
policy-​practice.oxfam.org.uk/​publications/​wealth-​having-​it-​all-​and-​wanting-​more-​338125?cid=rdt_​
384

384 Martti Koskenniemi

in Europe since the Second World War (though of course massive refugee fluxes
have been part of the everyday in the developing world). The collapse of the ‘Arab
Spring’ has fed deadly conflict and authoritarianism across the Middle East and
beyond. Both ‘terrorism’ and obsessive ‘anti-​terrorism’ have made transgressing any
international legal rules part of the global everyday. And then there is Trump. The
problem is not only that it is hard to say which rules are in force and which are not,
but that the very ideological structure of liberal progress that used to provide the
foundation for legal polices may have crumbled away. It would be trite to speak of
the ‘normalization of the exception’, the exception was always latent in the law. The
more sombre assessment suggests that in fact the decades between the Cold War
and the fall of the Twin Towers were the exception and that we are now back in the
melancholy normality of inequality and violence.
Whichever way one prefers to think about that last problem, it seems clear that
many received ideas about the inexorable march of international progress have
shown themselves at least unworkable, if not outright wrong. The international
legal project is not faring well. When, to take just one example, did the International
Law Commission of the United Nations, assigned to deal with the ‘codification
and progressive development of international law’ and reporting annually to the
UN General Assembly, last make a contribution that had any influence on the
lives of human beings anywhere? Who will remember the latest maritime delimi-
tation from the International Court of Justice? The World Trade Organization’s
(1995) Doha round has been stalled for more than a decade and the International
Criminal Court (1998) is facing a rebellion from African States tired of being at
the receiving end of prosecutions. Even the arguably more significant aspects of
recent progress—​the human rights system and the rise of international environ-
mental law—​seem bogged down undecided about whether to think of themselves
in terms of ideology or bureaucratic technology.12 Syria, Ukraine, the Middle East,
and South Sudan … the refugee crisis has made the expression of ultra-​nationalist,
even racist, sentiments part of Western politics. The time​scale and even the direc-
tion of what international lawyers used to think about progress must be revised.
True, there is some advance in the UN’s ‘millennium goals’. Extreme poverty in the
developing countries has dropped in 1990–​2015 from 47 to 14 per cent. Today
91 per cent of children in the developing world enjoy primary education, child
mortality has been halved, and gender equality is on the rise.13 But these results can
hardly be accredited to international law. And how are they compatible with the
data on the growth of global inequality? Will the world’s new inhabitants become
a global underclass to be exploited by the one per cent? The gap between the global
economy and local political contestation keeps expanding without expectation that
international law might have any influence on either.

havingitall> and ‘Global Wealth Report 2015’, Credit Suisse, October 2015, p. 6, <https://​publica-
tions.credit-​suisse.com/​tasks/​render/​file/​?fileID=F2425415-​DCA7-​80B8-​EAD989AF9341D47E>.
12  I have argued this in ‘The Fate of International Law. Between Technique and Politics’, The Modern
Law Review 70 (2007), 1–​32.
13  United Nations, The Millennium Development Goals Report (2015).
 385

What Should International Legal History Become? 385

Recent post-​colonial histories share the intuition that something about present
inequality and violence bears an inheritance of the past. They focus on the many
ways in which international law has been implicated in colonialism and imperial-
ism. But I am doubtful about the existence of a single ‘tradition’ of international
law that would have passed through history as an instrument of European pre-
dominance and could be indicted as responsible for today’s injustice. There is as
much reason to be sceptical of that proposition as of histories that used to depict
international law as a carrier of liberal and humanitarian progress, a ‘Grotian tradi-
tion’. The relations between law and international power are much more complex
and involve contradictory ideas about what ‘international law’ or even ‘law’ is and
how it can be used.

II

Expressions such as jus gentium, droit public de l’Europe, Völkerrecht, or ‘ law of

nations’ emerged at different moments, in different parts of Europe, to give effect
to varying concerns and objectives. They do not link together in any single tradition
that could be traced, say, to Roman antiquity, Renaissance Italy or the Thirty Years’
War. This is not to say that the legal vocabularies of each moment would not feed on
each other and express ideas that can be generalized between them. For example, all
of them have something to do with mediating the tension between the autonomy
of territorial polities and an overarching set of ‘international’ norms. But how they
do this and on which side they fall in that tension is wholly dependent on the con-
text: who is arguing, and for what purpose? The relationship between Rome and
its provinces is not the same as that between the Holy Roman Empire and North
Italian City States in the fourteenth century—​but it is possible to find lawyers using
arguments from jus gentium on all sides. In the conflict between absolutist France
and other Christian powers in the late seventeenth and early eighteenth century
all sides were arguing about ‘perpetual peace’—​but the meaning of such a project
could be deciphered only once we knew who was speaking. No doubt there are
reasonably stable vocabularies that address issues of international power in a legal
idiom—​just war, occupation, diplomatic immunity, mare liberum. But these words
do not emerge from any coherent blueprint—​they do not stand for any ‘system and
order’ in the words of this collection. They are vessels that carry the most varied
ideas. At least two further points challenge the assumption of a single tradition.
First is that such expressions articulate projects that are always already split
against themselves. From the twelfth to the seventeenth century, the expression
jus gentium has been associated both with immutable natural law rules that bind
the princes and their states absolutely as well as with the customary practices that
princes and their states have followed.14 From early on, many jurists, including

14  For the complexity of ‘jus gentium’, see Peter Haggenmacher, Grotius et la guerre juste (1983), pp.
311–​57; Annabel Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law
(2011), pp. 23–​8, 75–​89.
386

386 Martti Koskenniemi

Grotius, separated two distinct types of jus gentium, one associated with natural law
(jus gentium primaevum), the other with human (positive) law (jus gentium secunda-
rium).15 By choosing either understanding, it has been possible to support or cri-
tique the most varied types of policy. The complexity of the locution jus gentium,
the difficulty to pin it down with any stable meaning has, in fact, been a frequently
expressed concern of system-​minded lawyers. But that concern may be misplaced.
The very usefulness of that notion may lie in its interminable flexibility, its avail-
ability to argue whatever one needs to argue in view of one’s academic project or
client interest.
Although jus gentium cannot be said to stand for any definite political project,
any power in itself, it is of course possible to trace the ways in which it has actu-
ally been used in particular situations—​what interests has it supported, what has
been invoked against? The same can be said about international legal naturalism
of the ‘classical’ type. At only a few years’ distance from each other, the Protestant
refugee in England, Alberico Gentili and the Spanish Jesuit Francisco Suárez wrote
about the law of nations in utterly different ways. Gentili forged a theory of the
just war that opened a wide door for England to use pre-​emptive force in support
of the rebellion in Netherlands so as to combat possible intervention by Spain.16
Composing his text in a scholar’s chamber in Coimbra, Suárez suggested that the
requirement imposed by James I on his Catholic subjects to swear an oath of alle-
giance was unlawful and justified the collective intervention of Christian princes. It
is possible to see a tradition of peace and justice in the writings of both Gentili and
Suárez. But this must be a tradition that is so open-​ended as to be empty of sub-
stantive significance outside the specific context of sixteenth and early seventeenth
century imperial-​religious strife.
A number of new studies have sought to contextualize Grotius as a Dutch patriot,
a moderate activist in the Protestant cause and a legal counsel to the Dutch East
India Company (VOC). His legal writings become understandable once we situate
them in the context of those projects—​for instance his oscillation between support
to the principles of mare liberum in respect to the Portuguese empire in the East
Indies and monopoly trading rights with local rulers in his negotiations with the
English.17 This is not to point to anything dubious in his character but to show the
very flexible nature of the law that enables jurists to defend contrasting positions in
view of the interests of their clients—​which is, of course, what jurists are profession-
ally trained to do. Again, instead of there being a ‘tradition of mare liberum’ carried
within international law, there has been a vocabulary that has allowed arguing both
mare liberum and mare clausum. The best histories have demonstrated how lawyers

15  Hugo Grotius, Commentary on the Law of Prize and Booty, ed. and with an Introduction by
Martine Julia van Ittersum (2006 [1604–​6]), Prolegomena, p. 45.
16  Alberico Gentili, De iure belli libri tres (1933 [1612]), ch. XIV, pp. 61–​6; Francieco Suárez,
Defensa de la fe catolica y apostolica contra los errores del anglicanismo (1970 [1613]), ch. 23, pp. 333–​40.
17  See e.g. Arthur Weststejin, ‘Love Alone is not Enough: Treaties in 17th Century Dutch Colonial
Expansion’, in Saliha Belmessous (ed.), Empire by Treaty: Negotiating European Expansion 1600-​1900
(2015), p. 35.
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What Should International Legal History Become? 387

have argued those cases, and what it has been necessary to believe in order to think
one or other argument as the more plausible one.
I am also thinking of Emer de Vattel’s ingenious insertion of what he called ‘vol-
untary law’ between ‘necessary’ natural law and ‘conventional law’, the positive treaty
law dependent on the will of the prince(s). When Vattel wrote that ‘voluntary law’
was natural law but not quite as immutable and powerful as ‘necessary law’ but not
dependent on the changing will of the sovereign, either, he opened another way for
lawyers to argue on the basis of will and a non-​will related standard as situations might
require: ‘will’ against binding rule and the other way around. Instead of a ‘doctrine’,
what becomes visible is an argumentative move that tells much about law as tech-
nique but little of its substantive orientations.18 Again, Vattel’s natural law was not
part of any substantive tradition of war or peace, statehood, or the international order.
It was all of that at the same time, offering for later jurists an argumentative toolbox—​
a diplomatic casuistry, Ian Hunter has written—​on which they could freely draw.19
But the second and more important point about the purported ‘tradition’ of jus
gentium, droit public de l’Europe, law of nations, and our ‘public’ international law
lies in the ‘conflict of the faculties’ that has always surrounded those notions and
framed their field of applicability. For the early modern advocates of jus gentium
it was clear that the way the world was organized, and how it should be governed
was determined by theology. Early civil lawyers of the fourteenth century such as
Bartolus of Saxoferrato or his student Baldus of Ubaldis, for example, were con-
cerned over the rise of territorial regna across in northern Italy and the old Frankish
realm. They saw this as an effect of the retreat of the empire and the re-​emergence of
an old jus gentium that had provided for the ‘division of dominia’ in the first place.
And yet they were clear that however the novel situation was to be understood, def-
erence was to be paid to canon law, the only really universal law, and that denying
the emperor’s status as ‘dominus mundi’ would be heretical. To think of the history
of jus gentium without reference to Aquinas’ Summa theologiae, for example, would
be impossible. To read it in abstraction of the concerns of conscience that inspired
the Summa would be a sure way to missing its point. Why, for instance, did jus
gentium exist both in the part that deals with ‘law’ and the part that deals with the
virtue of ‘justice’?20 Because it was insufficient just to ‘apply the law’; this must be
done with the view to reaching a good outcome.
For the Spanish scholastics, Grotius and most natural lawyers until way into
the eighteenth century, the Bible remained the highest legal source and Christian
moral theology the most authoritative language for understanding the interna-
tional world. As Grotius put the matter in the opening paragraph of De jure prae-
dae: ‘What God has shown to be His Will that is law.’21 And yet we do not access

18  Emer de Vattel, The Law of Nations (2008 [1758]), pp. 75–​8.

19  Ian Hunter, ‘Law, War and Casuistry in Vattel’s Ius Gentium’, Parergon 28 (2011), 87–​104.
20  Compare Aquinas ST I-​II Q 95A 4 (resp) and II-​II Q 57 A 3 in R.W. Dyson (ed.), Political
Writings (2007), pp. 135, 163–​4.
21 Grotius, Commentary on the Law of Prize and Booty, Ch II (19).
38

388 Martti Koskenniemi

to Grotius’ religious feelings and need to bear in mind that elsewhere he wrote of a
natural reason operating at some distance from revelation. And then again during
a short period between the end of the seventeenth and beginning of the eighteenth
century,ambitious jurists at German enlightenment universities such as Halle and
Göttingen used a basically secular natural law to consolidate the monarchies they
served, before they transformed it into a technology of government that imagined
itself as a Policy-​science (Polizeiwissenschaft) and a Staatskunst, oriented towards
empirical and comparative studies of the resources of rival states.22
From early eighteenth century onwards, the attention of rulers, diplomats, and
jurists interested in international affairs has been on the discovery and applica-
tion of the rules of statecraft that would enable the state to maintain and aug-
ment its power in relationship to its rivals. This was more specifically the ambition
of men such as Gabriel Bonnot de Mably whose Droit public de l’Europe (1746,
1757) hoped to inaugurate a science of negotiations that would teach statesmen
and diplomats to identify their ‘real’, long-​term interests that would allow them
to ignore their momentary passions and so devise policies advantageous to the
nation as a whole. The ‘public law of Europe’ was indebted to a combination of the
Machiavellian diplomatic tradition with the emerging science of political economy.
The law of nations would be wise policy, and wise policy consisted of calculations of
the resources available for the state and how either to maintain the balance of power
or to tilt it in an advantageous direction.23
In Britain at the same time, the most ambitious natural lawyers, many of them
from Scotland, were contemplating the principles through which what they would
call commercial societies would prosper in an increasingly tough world of economic
competition. A key part of their natural law was a conjectural history that saw all
development, including legal development, directed through predetermined stages
towards a society where free trade would lay the conditions for increasing welfare
everywhere.24 Although some of them subscribed to the idea of peace through com-
merce, others were not equally optimistic; intense debates were waged about the
pros and cons of the possession of colonies and the conditions of colonial trade. It
is no doubt symptomatic that having published his Theory of Moral Sentiments to
great acclaim in 1759, Adam Smith declared that he would now produce a legal
theory to match the psychological insights of his sentimental morality—​but that
once he moved to Glasgow to give the famous lectures of jurisprudence, the out-
come was not a theory of law but of the Wealth of Nations (1776).

22  Martti Koskenniemi, ‘Transformations of Natural Law: Germany 1648-​1815’, in Anne Orford
and Florian Hoffmann (eds.), Oxford Handbook of International Legal Theory (2016), pp. 59–81.
23  See further, Martti Koskenniemi, ‘The Public Law of Europe:  Reflections on a French 18th
Century Debate’, in Helena Lindemann et  al. (eds.), Erzählungen vom Konstitutionalismus (2012),
pp. 43–​73.
24  See Adam Smith, Lectures on Jurisprudence, eds. R.L. Meek, D.D. Rahael, and P. Stein (1978),
LJ(A), pp. 14–​16 and the discussion in Peter Stein, Legal Evolution:  The Story of an Idea (1980),
pp. 23–​50.
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What Should International Legal History Become? 389

The variants of natural and public law that preoccupied European jurists in the
eighteenth century did not survive to the nineteenth. The science of statecraft and
the calculative approach to foreign policy soon gave impetus for the establishment
of alternative vocabularies, namely those of political economy or ‘diplomatic sci-
ence’. Instead of jurists, it soon became clear that European rulers needed econo-
mists and experts in diplomacy—​in due course of ‘political science’—​to counsel
them on wise policy. Chairs of natural law at German universities were turned into
chairs of policy-​science, political economy or Nationalökonomie. What was left of
‘natural law’ became, not least under the powerful attacks waged by Immanuel
Kant and the Kantians on the old ‘Wolffian’ natural law, ‘legal philosophy’, ostra-
cized into the margins of the law faculty from where it would have no influence on
policy whatsoever. It would be only towards the last third of the nineteenth century
that activist liberal lawyers would resuscitate ‘international law’ as the platform of a
meaningful engagement with policy-​makers and diplomats.25
The world as we know it is not the product of a continuous tradition of ‘inter-
national law’ not least because there is no such tradition. I have above tried to show
that the various legal vocabularies through which jurists have addressed the ‘inter-
national’ world are internally indeterminate and speak of things that we would not
today call ‘law’ at all (virtue, faith, skilful management of state resources, diplo-
matic strategy, the creation of a international market for enterprising merchants,
etc.). And even as ‘law’ does intervene in setting out the way in which resources in
the world should be allocated and exchanged, and how international ‘development’
is to be conceived, this would not be ‘public international law’ as we now under-
stand that expression but the ‘private law’ regulating the possession and transfer of
property rights.

III

It was clear for the theologians and jurists contemplating the rise of the European
states-​system that the justification of the exercise of power therein would be a com-
plex matter. At the beginning, everyone agreed, only God has power over humans.
God was Dominus while humans were originally free and equal among themselves.
However, according to both civil and canon law, and as elaborated in countless
scholastic tracts on ‘justice and law’ from the thirteenth to the seventeenth cen-
turies, humans would soon divide things between themselves, establishing ter-
ritorial polities and proceeding from common to private property.26 Alongside
the power of the ruler as dominium jurisdictionis, there emerged the power of
the owner as dominium proprietatis. As was clear for the late medieval and early

25  Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-​
1960 (2001).
26  For this narrative, see the still unsurpassed Marie-​France Renoux-​Zagamé, Origines théologiques
du concept moderne de propriété (1987).
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390 Martti Koskenniemi

modern publicists contemplating these two forms of human power, much about
the nature of the polity depended on how their relationship was conceived. Did the
prince have the power to tax, or to expropriate the owner, and under what condi-
tions?27 Absolutism contained one set of answers to that question—​but after the
eighteenth century those answers were hardly plausible. With John Locke, Adam
Smith, and the French Revolution, the view became predominant in Europe that
private property was not only the most important of individual rights but that,
properly conceived, it was also the most important element in the legal system of a
prosperous—​thus powerful—​nation.
Historians of international law are keen to reflect, for example, on the views
of the Spanish Dominican Francisco de Vitoria on the lawfulness of the Spanish
conquest of the Indies in the sixteenth century. His famous relectiones raised
issues of just war and the powers of dominion that became standard topoi of a
whole literature moving freely between moral theology and law. Much less atten-
tion is given, however, to the massive discussion on the principles having to do
with the expansion of commerce in Europe and beyond that was triggered by the
import of silver from the American colonies. The most significant contribution,
of the ‘Salamanca school’ was, arguably, the discussion of principles of property
and contract that would fit the new commercially oriented world while still seek-
ing to balance the requirements of this new morality (and law) with Christian
ethics.28
The writings of the Salamancans on private law and commerce were accompa-
nied by the consolidation in Europe of a jus commune that was inspired by civil and
canon law and integrated to a greater or lesser extent the local laws of European
provinces. The right of private property was a central aspect of that common law.
In the seventeenth and eighteenth centuries writings on lex mercatoria brought to
light the formation of a reasonably uniform set of rules to govern international
trade on the basis of private property and contract. This did not take place through
treaties between sovereigns. It emerged as a result of spontaneous developments
more or less everywhere in Europe and the colonies in response to economic and
commercial pressures. Governments debated the costs and benefits of monopolies
and worried over their inability to control interests and currency rates in a way that
made them increasingly vulnerable to the fluctuations of international commerce.
One after another Western European states would carry out agricultural reforms
leading to the privatization of common lands and drawing large populations into
great manufacturing centres. By the eighteenth century, it was held evident that
the power of a nation lies in the resources it has available to itself, this being a

27  For a useful introduction, see Kenneth Pennigton, The Prince and the Law, 1200-​1600: Sovereignty
and Rights in the Western Legal Tradition (1993).
28  I have argued this in ‘International Law and Empire: The Real Spanish Contribution’, University
of Toronto Law Journal 61 (2011), 1–​36. See now also Wim Decock, Theologians and Contract Law: The
Moral Transformation of the Ius Commune (c. 1500-​1650) (2013).
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What Should International Legal History Become? 391

function of its positive trade balance: it needed to produce and sell more cheaply
than its rivals.29
The massive codifications of civil law across Europe, the professionalization
of law and legal education, the rise of constitutionalism, the heritage of the jus
commune—​all these offered a legal foundation for the ‘European century’ which,
with all its conflicts and contradictions, ensured that ‘civilization’ and ‘modernity’
would equal what was going on in the continent and, increasingly, also the United
States. The differences between civil and common law systems, between the laws of
European north and south were real but nevertheless only variations of a common
theme. That these laws would be applicable to Europeans also outside Europe would
be guaranteed by complex extraterritoriality arrangements and, increasingly, by the
direct subordination of non-​European territory under European rule.
Of course, ‘law’ has been crucial in the production of European statehood and
the welfare of its populations. It also played an important role in the expansion
of European influence outside the continent and in the formation of the colonial
relationship between Europeans and others. Some of that law has been articulated in
terms of sovereign statehood, the principles of constitutionalism, good administra-
tion, and fundamental rights. A specific ‘colonial law’ also developed in the latter
half of the nineteenth century. But most laws influencing the ways of international
power consolidated the principles of private property and contract, the organization
of the family, and the conditions of work (including slavery). A history that pays no
attention to the latter cannot fulfil the ambition to illuminate law’s involvement in
how international power has been structured, supported, channelled, and opposed.

IV

A history motivated in the way suggested should give up exclusive focus on states,
sovereignty, formal diplomacy, great questions of war and peace. No doubt, a state-​
centric view haunts the imagination of jurists preoccupied with the ‘international’.
This applies also to the post-​colonial critics of empire. As long as focus is on states,
matters of great importance are left out of sight. I wrote earlier that late medieval and
early modern jurists were clear that human power is of two types—​dominium juris-
dictionis and dominium proprietatis, ‘sovereignty’ and ‘property’ for short. They were
clear that property was about power between humans, namely the power to exclude
others, and often terribly uncertain on how to justify this. Some of the earliest com-
mentators regarded private property an effect of the sin of avarice. Others saw some
benefit in the practice of buying and selling but stressed the dangers that doing this
professionally posed for one’s soul.30 It is useful to note that much of these debates took

29  See Istvan Hont, Jealousy of Trade: International Competition and the Nation-​State in Historical
Perspective (2005).
30  See Janet Coleman, ‘Propery and Poverty’, in James H. Burns (ed.), The Cambridge History of
Medieval Political Thought c. 350-​c. 145 (1988), pp. 607–​48.
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392 Martti Koskenniemi

place under the assumption that private property was jus gentium—​that is, it was an
‘international’ law though instead of being decreed by natural law but merely ‘permit-
ted’ by it.31
In due course the idea emerged that property was justified by the labour that one
had put into producing a thing—​the ‘workmanship model’ of property that John
Locke drew from the biblical creation narrative.32 This was of course wholly insuf-
ficient for justifying the kinds of large properties that had come to accumulate for
example through the activities of the Caroline Company of which Locke was one
of the secretaries and a shareholder. The systems of banking and credit that upheld
the process of accumulation—​of great concern to contemporaries—​find little space
in standard international law histories. Nor is there much attention to how the
company could have property rights on slaves that were working in the colony for
its proprietors’ benefit. Such property right was unquestionably valid under prevail-
ing assumptions and extended throughout the North American colonies and the
Caribbean as an immensely important aspect of legal power. And yet, that power
largely escapes standard histories of international law. Worse, the concentration
of many international legal histories on the process of abolition of slavery while
staying silent on the operation of slavery as an international legal system is surely a
massive distortion of the relations of law and power. About 12.5 million Africans
embarked from Africa as slaves in 1501–​1866.33 How was the slave contract made
with the African trader? What about the conditions of sale at the American end?
That discussion of the American slave codes or the French Code Noir are no part
of regular international legal histories is striking evidence of the narrowness with
which ‘international law’ has been conceived and may perhaps explain some of the
malaise of the perceived irrelevance of the field.
A standard work in the history of international legal ideas would mention
Machiavelli and Hobbes but neither Antoine de Montchrétien nor Adam Smith.34
Such a work would dwell extensively on the Spanish conquest of the Indies but
say little about the carriage of silver from Potosi to Seville, and remain positively
silent about its contribution to oiling the wheels of global commerce (to borrow
an expression of François Braudel). Such a work would describe in detail Grotius’
views about the just war but rarely mention that he regarded the Dutch East India
Company as both a private company and representative of the United Provinces.
It would make mention of Emer de Vattel’s Droit des gens but not of the view of
Christian Thomasius (and many other German eighteenth-​century natural law-
yers) that the jus gentium was neither law (justum) nor morality (honestum) but rules
of diplomatic courtesy (decorum).35 An international legal history would also rarely

31  Brian Tierney, Liberty and Law: The Idea of Permissive Natural Law, 1100-​1800 (2014).
32  James Tully, A Discourse on Property: John Locke and His Adversaries (1980), pp. 8–​9, 35–​45.
33  Herbert S. Klein, The Atlantic Slave Trade (2nd edn, 2010), pp. 214–​15.
34  The paragraphs below follow my ‘Expanding Histories of International Law’, American Journal
of Legal History 56 (2016), 104–12.
35  Christian Thomasius, Grundlehren des Natur-​und Völkerrechts (2003 [1709]) Book I, Ch. 5 § 70
and generally 65–​81 (105–​8).
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What Should International Legal History Become? 393

include an analysis of the charters under which private companies and individual
proprietors would rule Britain’s thirteen colonies in North America. Nor would it
pay much attention to the seventeenth-​century uses of the vocabulary of jus gen-
tium in Britain to uphold the royal prerogative against common law institutions.
A basic history of international law might treat the East India Company’s rule
over much of the Indian peninsula from 1757 as an aberration—​while it was
merely the most conspicuous case of basic forms of English and early French colo-
nial expansion. And it would have nothing to say about the development and use
of instruments such as the letter of credit and letter of exchange as they were trans-
formed from facilitators of trade fairs into building blocks of a wholly global bank-
ing system by the end of the eighteenth century. Studies of lex mercatoria might
make reference to a series of judgments by Lord Mansfield in the 1770s that gave
legal effect to bills of exchange in violation of the common law doctrine of con-
sideration.36 But histories of international law have so far failed to notice that the
autonomy international mercantile law, recognized in those judgments as jus gen-
tium, would become a crucial instrument in the policy of ‘jealousy of trade’ that
would be regarded as a key element of the eighteenth century European foreign
policy. Virtually no attention has been given to the French efforts during the Seven
Years’ War (1756–​1763) to codify a policy of ‘balance of trade’—​and objections by
naturalists such as J. H. G. Justi according to which this would violate the ‘natural
freedom’ of economic relations.37
In other words, while international legal histories have meticulously traced the
legal trajectories of the foreign policy of states, they have paid much less attention—​
virtually no attention—​to the private law relations that undergird and support state
action that become visible only once analysis penetrates beyond what takes place in
diplomatic chancelleries. The Spanish maintained a formidable imperial presence
in the Indies, striving to rule its provinces directly through viceroys and royal cedu-
las issued through the Council of the Indies. However, in reality, the encomenderos
governed the provinces quite independently from the centre, and royal legislation
was frequently left unimplemented. The government lacked funds needed to set
up an effective government over the territories. Borrowing from an international
banking system where interest rates could not be domestically manipulated resulted
in a series of bankruptcies that sometimes paralyzed the central government. Now
the legal operations carried out with the help of new financial instruments arguably
overweighed in importance any formal legislation. The fact was not lost on Spanish
jurists themselves, whose treatises on commerce or monetary policy have often been
seen as the first in-​depth treatments of a global financial system.38 And yet, neither
the new practices nor their articulation in the legal works of Martin de Azpilcueta
or Diego de Covarrubias have been given much attention in the histories of interna-
tional law. The works of the theologian Vitoria on the Indies and on just war have of

36  Pillans v. Van Mierop, 5 Geo B.R. 1663, 1669 (1765).

37  Johann H.G. Justi, Die Chimäre des Gleichgewichts der Handlung und Schiffahrt (1759).
38  See e.g. Tomás de Mercado, Suma de tratos y contratos (1975 [1553]).
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394 Martti Koskenniemi

course been examined in great detail—​unlike his extensive commentaries on the
rights of property and contract that sought to drive a compromise between the
orthodox Aristotelian–​Thomist suspicion of mercantile culture and the realities of
an expanding commercial system.39
International lawyers have been interested in the vicissitudes of sovereignty. Even
when their interest has been inspired by a critical attitude, they have not given up
the view that sovereignty is the concept around which legal histories, and hence
their criticisms, should revolve. They have therefore focused on the emergence of
independent ‘states’ and the extent of the sovereign rights states have claimed vis-​
à-​vis each other. They have traced the forms of diplomatic interaction and concen-
trated on war and treaty-​making as privileged instances of international authority.
They have set aside any wider interest in the relations of contract and property
that support state policies, the development of instruments for long-​distance trade
and finance that make not only trade but also the actions of the sovereign in the
‘international’ space possible. As a consequence they have, with few exceptions,
largely failed to notice the great shift in the seventeenth and eighteenth centuries
that accounted for the ‘jealousy of trade’ becoming a principal aspect of the strug-
gle of international power and a standard of measurement of alternative policies.40
While histories of international law feel at home discussing proposals for perpetual
peace by theologians or philosophers such as the Abbé de Saint-​Pierre or Immanuel
Kant, not much attention has been given to parallel ideas among writers in ‘political
economy’ such as Giovanni Botero or Charles Davenant.
Of course there are exceptions and deviations from the pattern. Some have
focused attention to the role of private international law in addressing ‘some of
the biggest problems the law faces today [including] the character of sovereignty
[and] the nature of legitimacy in situations of political conflict’.41 Collective works
on international legal history sometimes include essays on lex mercatoria or state
debts. Moreover, recent works in private international law have sometimes read
the relevant materials through the lenses of international politics or the organiza-
tion of global trade.42 But owing to the often intransgressible boundary between
public and private law, these have been scarce. The prejudice that public law has
to do with matters by their nature ‘political’, while private law deals with non-​
political and ‘only technical’ matters, is strong. Trade law straddles the private–​
public boundary, but so far little has been done towards producing credible,
non-​teleological histories of economic law (that is to say, histories that would not
start with Adam Smith or look towards free trade as the inevitable product of a

39  See further my ‘The Political Theology of Trade Law: the Scholastic Contribution’, in Ulrich
Fastenrath et al. (eds.), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma
(2011), pp. 90–​112.
40  On this theme, see Istvan Hont, Jealousy of Trade: International Competition and the Nation-​State
in Historical Perspective (2005).
41  Karen Knop, Ralf Michaels, and Annelise Riles, ‘Foreword’ to ‘Transdiclipinary Conflict of
Laws’, Law & Contemp. Prob. 71 (2008), 16.
42  Alex Mills, The Confluence of Public and Private International Law (2009).
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What Should International Legal History Become? 395

progressive history), especially from the perspective of reading economic decision-​

making within a state from the perspective of its overall political strategy.43
Not much historical work has been undertaken to examine the role of prop-
erty regimes for constitutional law or international policy.44 There is of course a
huge amount of writing on ‘mercantilism’ (although it is now orthodox to doubt
the appropriateness of that word to describe the myriad of economic writings that
appeared in Europe between the late sixteenth and late eighteenth centuries), but
that scholarship rarely examines the legal instruments or institutions that govern
trade policy. The relevant literature at the time made much of the role merchants
played in enhancing the power of the state. Malynes, for example, insisted in 1629
that ‘of the six members of all the governments of monarchies and common-​weales,
[the merchants] are the principal instruments to increase or decrease the wealth
thereof ’.45 Even as they often discussed about the pros and cons of trade agree-
ments, there is little international law commentary on them.

The way we think about the history of international law is part of the ‘system and
order’ we see in the international world. It directs and limits our scope of vision and
determines what, for us, seems important and unimportant, what items are worthy
of study and what may be left aside, perhaps for others to develop or study. In this
chapter I have suggested that in case the ambition of international legal history is
to grasp the role of law in supporting, channelling, and opposing power, then it is
insufficient to focus on public law and the interactions of formal states. Attention
should be directed to the ways in which the international order as a whole has been
structured so as to distribute spiritual and material values in the world. In what
ways does it help to produce and reproduce the conditions of living that exist in
different parts of the world? Very often the answers to such questions are not imme-
diately visible on the surface of things. In that case, attention must be directed to
the background rules that choose among different actors those who will be authori-
tative, picks from the facts of social behaviour those that are ‘relevant’, and singles
out from the mass of events and occurrences in the world those that qualify as ‘legal
problems’ worthy of the time and energy of international lawyers. In studying past
law it would be important to penetrate the surface of the legal ‘parole’ so as to make
visible the ‘system and order’ that conditions the production of legal thought and
practice. Among those background rules is the distinction between sovereignty and

43  An important opening in the Anglophone world in this respect is Thomas Poole, Reason of
State: Law, Prerogative and Empire (2015).
44  An interesting exception is Olivier Beaud, ‘Constitution, Ownership and Human Rights’, in
Kelly L. Grotke and Markus J. Prutsch (eds.), Constitutionalism, Legitimacy and Power: Nineteenth-​
Century Experiences (2014), pp. 127–​38 (largely denying that ‘capitalist’ property rights greatly influ-
enced the French constitution).
45  Gerard Malynes, Consuetodo vel lex mercatoria, or The Antient Law-​Merchant (1629), p. 62.
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396 Martti Koskenniemi

property, or ‘public law’ and ‘private law’. This suggests that relations between pub-
lic power and citizens on the one hand and between private subjects on the other are
somehow very different. This assumption plays a hugely important role in structur-
ing the way lawyers but also other people think about the world. It makes us believe
that the power embedded in legislation is wholly different from the power expressed
in contract; it suggests that it would be a mistake to equate debates in a national
parliament to those at a shareholder meeting of a large company; it labels certain
transactions as ‘corruption’ while regarding other as merely ‘marketing’. Overall, it
suggests that there is a realm of distribution that should be called ‘politics’ while
another ought to be understood as ‘the economy’ and that very different account-
ability rules ought to be applied to them.
The production of such distinctions is a feat of what could be called the legal
imagination and at its best, the history of international law could illuminate how
that imagination has worked it the past—​how, for example, it has produced and
keeps reproducing the distinction of the ‘public’ and the ‘private’, including (pub-
lic) international law and the (private) moves of property and contract across the
world. By showing how such a distinction has emerged, by historicizing it, it may
be possible to think of it as just a contingent aspect of our world, something to be
reflected on its merits. If it is not a historical ‘necessity’, then why should we have
it? What does it do in the world, and to us? The work of disenchantment might be
further enhanced if it were possible to show that the distinction is actually much
more unstable than we think, that in fact, the two—​public and private—​depend
and rely on each other in a myriad of ways. Such a history of international law could
demonstrate, for example, that behind every sovereign, there is some set of relations
of property that help to sustain it, provide it with resources and determine its direc-
tion. Or conversely, it could be shown that every significant property relies on state
power and state institutions, from legislation to military force, that provide the
conditions where it may thrive. If the separation of the two—​public and private,
sovereignty and property—​is merely a contingent and unstable aspect of the law,
then it would be natural to examine its consequences by reference to alternative
ways to think about how power might be organized. At the outset of this chapter, I
noted the tremendous intensification of global inequality. Might that in some way
be the outcome of the distinction? If it is, and if the inequality itself is something
lawyers should deal with, perhaps the resources of the legal imagination that once
produced that distinction could be enlisted to throw a critical eye on it. Perhaps it
could be possible to think differently about the institutional choices through which
law affects the distribution of resources in the world. Perhaps, for example, we
could learn to think of operations in the ‘private realm’ as equally ‘political’ as those
in the public realm. Perhaps there is no great difference between being coerced by
the police and by a labour contract. Perhaps it is possible to see both virtuous behav-
iour and Mafioso arrangements across the board.
If the history of international law has the ambition to become a history of how
law has enabled, channelled, and opposed international power, then it should not
be confined by settled distinctions but take the formation of those distinctions as its
object, and enquire into their consequences. This necessitates focusing from express
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What Should International Legal History Become? 397

discourses to the background rules and assumptions, and demonstrating both

their contingency and their empirical effects. This may require setting aside some
conventional truths about how law operates in its relationship with power. And it
would require some imagination. Fortunately, this is a resource to which past law-
yers possess no monopoly.