Author:Vadi, Valentina

God is in the details. Aby Warburg


    The history of international law has come of age. Once the domain of elitist historians and international lawyers, it has become a fertile field of study. Investigating the histories of international law can help understanding the past, present, and future trajectories of international law. The recent success of certain international legal histories shows that interest in international law and its histories is not the reserve of international lawyers or legal historians. Rather, the history of international law attracts the interest of the broader public and can have societal relevance. (1) Fostering education about international law contributes to "build peace in the minds of men," (2) "strengthe[n] international peace and security[,] and promot[e] friendly relations and co-operation among States." (3) In parallel, knowledge of international legal history is a condition of the respect, critical assessment, and reform of international law.

    The recent 'turn to history' of international law, (4) the parallel 'international turn' of legal history, (5) and the resulting emergence of international legal history as a field of study have all determined an unprecedented interest in methodological questions in international legal history. (6) While international lawyers have increasingly explored the origins of their field to understand its current trajectories and address future challenges, legal historians have increasingly explored international phenomena. These parallel trends have converged and determined the emergence of international legal history as a promising field of study at the crossroads between international law and legal history.

    Because of its interdisciplinarity and relative novelty, the field of international legal history has raised a number of methodological questions. Should international legal histories focus on the specific or the general? Should international legal historians focus on the details or should they investigate big issues? Can the narration of international legal histories be accessible to the many or should it be elitist and addressed to the few?

    This article contributes to the emerging debates on the methodology of international legal history focusing on the power of scale. Historical research can be conducted using different scales of analysis. Depending on the selected scale of analysis, international legal history can be macro or micro.

    Macro-history seeks out large, long-term trends in international legal history, looking at multiple events and concepts over the course of centuries. (7) It studies the past on large scales and relies on quantitative analysis. (8) Macro-history is about people as collectives, nations, or states rather than as individuals. As noted by a historian, "macrohistory takes a long view of history, looking at multiple societies and nations over the course of centuries to reach broad-ranging conclusions about the march of history." (9)

    Microhistory typically reduces the scale of analysis and focuses on given events, legal items, or individuals. (10) It explores interactions among peoples rather than states. (11) It pushes individual destinies to the forefront of international historical investigation. Microhistories are more ambitious than they might look at first glance. (12) They ask big questions in small places. (13) Despite their small scale, such stories can epitomize the behaviors, logics, and motives characterizing a given society. (14) Microhistories can bridge the worlds of international law, literature, and history. (15)

    Most international legal historians have adopted a telescope rather than a microscope in investigating historical events and their legal outputs. (16) International legal histories have approached events on a grand scale and investigated international relations among states. (17) In this macro conceptualization of international legal history, the individual disappears and becomes irrelevant. Quintessentially, macro-history is a history without people (histoire sans les hommes). (18) However, the fact that macro-historical approaches have dominated in the field of international legal history does not mean that micro-histories are, or should be, irrelevant.

    There are many factors contributing to the relative wealth of macro-histories and parallel dearth of microhistories in international legal history. First, as a historiographical current, microhistory is of more recent vintage than macro-history, which can help explain the relative absence of international legal microhistories. In fact, in historiography, the interest in microhistory arose partly as a reaction to the macro-historical approach put forward by the French Annales School (and especially Fernand Braudel). (19) Established by Lucien Febvre (1878-1956) and Marc Bloch (1886-1944), the school was extremely influential in the twentieth century, published its own journal, the Annales, and promoted an ambitious conception of history as "total history", that is, a form of history that "dominated and embraced all other studies of the human condition." (20) An eminent historian, Braudel examined big issues, such as the history of the Mediterranean Sea, in the course of centuries. (21) For Braudel, it is impossible to understand given events without placing them in the perspective of the long-term. (22) La longue duree, as he calls it, indicates a perspective of centuries, or even millennia. (23) Yet, the Annales School was seen as too deterministic, macroscopic, and elitist. It left little, if no, space to lived experience. (24) Microhistory began in the late '60s early '70s as a reaction to the Annales School. (25) Reflecting "the political turmoil, social upheaval, and critical atmosphere" of that period, (26) it rejected a "totalizing and imperious" history without people. (27) Rather, it focused on individuals, groups, and communities, often considering those people who had been at the margins, because of their lower social status, their "heretical" beliefs, or gender and ethnicity. (28) By focusing on "the lives, beliefs and practices of those who had previously been 'hidden' from history", (29) microhistory greatly contributed to the evolution of historiography, treating such people as the subjects rather than the objects of history. Moreover, far from being irrelevant, microhistories could epitomize broader trends.

    Second, for a long time, international legal scholarship has assumed that states are the only subjects of international law. (30) Non-state actors--including individuals, minorities, indigenous groups, and local communities, as well as non-governmental organizations (NGOs) and multinational corporations--used to be perceived as mere objects of international law. (31) Only recently has their important role in the development of international law emerged. (32) This paradigm shift in international law requires an analogous shift in international legal history. International legal history could well focus on states only if international law was conceived as a mere law among states. (33) Nowadays, this is no longer possible, as individuals, communities, and nations matter in international law. (34) Therefore, international legal history can no longer neglect these.

    Third, international legal history itself is a relatively young field of analysis. Only recently have international lawyers and legal historians started to investigate the field. (35) Therefore, there has only been limited investigation on the available methods for conducting such research. (36) If international legal historians have written microhistories, such stories have not formed consistent patterns yet, nor has there been a theoretical investigation upon the same. However, the fact that macrohistorical approaches have dominated in the field of international legal history does not mean that the current situation must remain as it is. Nor are the historic motives for the relative absence of microhistories reasons against expanding their use today. First, microhistory constitutes an important field of historical investigation and has contributed to the "anthropological turn" in historical writing in the mid-twentieth century. (37) Second, non-state actors have increasingly expanded their role in public international law, (38) and increasingly played an important role in the making of the same. (39) According to some scholars, "human beings are becoming the primary international legal persons." (40) This process is visible in a range of international law fields, from international investment law to human rights law, from international criminal law to international humanitarian law. (41) Moreover, international law has "a humanist orientation," (42) as it relies on an ethos of union and requires us to recognize our common humanity. (43) Third, international legal history is also gradually reflecting this shift of attention from states to non-state actors (44) and "individual destinies [are being pushed] to the forefront of historical investigation." (45) In the past decade, international legal microhistories have become bestsellers, attracting the attention of international lawyers, historians, and the public at large. (46) These impactful works, written by eminent academics, show that microhistory is a powerful tool that can contribute to the diffusion of the knowledge of international law and build peace in the in the minds of men and women. (47)

    This article contributes to the emerging debates on the history and theory of international law focusing on the power of scale. It aims to spark a discussion on the pros and cons of microhistorical approaches to international legal history. The article shows that micro-historical approaches can help international legal historians to bridge the gap between the academic and the public realm, unveil unknown or little known international legal histories, and contribute to the development of...

To continue reading