Justice Among the Nations: A History of International Law

"First of all, this is just a lovely book, as well as being one I happened to learn lots from. It’s a history of international law that, in keeping what we have been discussing, gives a place to power, events and wars, but also to ideas and values, and to interests. Most people, including myself, would regard Hume as trying to escape from various natural law theories that had been promulgated and circulated over the previous 150 years or so before he was writing, but one can give a Humean explanation of why the natural law he wanted to reject had grown up. That is a story that Neff tells wonderfully well without framing it in Humean terms. In the Old Christendom, before the Reformation (and Renaissance ), disputes among peoples, princes, nobility, might be settled in the canon law courts of the church, with ultimate authority resting with the Pope—or, for large parts of continental Europe, in the institutions of the Holy Roman Empire, culminating ultimately in the authority of the emperor. However well that worked, and it worked tolerably well in some respects, it could not work after the Reformation because, crudely, the Protestant states, princes and peoples weren’t going to accept the authority of either a Roman Catholic pope and his institutions or a Catholic Holy Roman emperor and his institutions. And yet, disputes and various kinds of conflicts still needed resolving if war was to be avoided. Natural law grew up—very much, in a sense, as part of the history of international law—as an attempt to address the question: what common norms do we have that we can apply irrespective of where we stand? Neff tells that story really well, as a story about power and as a story about norms and ideas. In other respects, the development of international law was, as modern scholars have pointed out, part of the history of colonialism. Right from the beginning, when Spain was taking control of parts of Latin America, there were debates in the University of Salamanca about whether it was permissible, and on what grounds it was permissible. Was it permissible if the emperor or the pope said so? Very roughly, did the emperor or the pope have ultimate authority over the seas and lands? And then, as trade expanded, was it permissible to interfere with another European state’s trade in the Far East? “Neff tells that story really well, as a story about power and as a story about norms and ideas” Grotius wrote one of his early contributions to what became international law in the context of a Dutch ship having clobbered a Portuguese ship in the East Indies. All those circumstances are morally ugly, but the people concerned found themselves confronting what they saw as problems for them , developing institutions and norms to help them maintain order among rivals. So, again, the development of the natural law tradition in international law comes from a set of problems that a unified Christendom could no longer resolve. Neff tells another story that is tremendously important for us. During the 19th century, the commitment to positivism in all its forms, including legal positivism, was such that morality came to be seen as a separate realm from the concrete law. There are various ways of thinking about positivism in international law but to pick just one, it amounts to a series of contracts between states, with their force depending upon serving the parties’ interests. And then, that broad way of thinking about international law was thrown into crisis after the Holocaust . Crimes against humanity (the language of Nuremberg), and of genocide (a term used in the Nuremberg indictment but not formally a crime in itself until a bit later) were things that seemed to transcend anything that positivists could fit into their broad framework. We were back to some values that we couldn’t imagine life without. It was like a revival of the natural law tradition, or a part of it. I think that fits with an explanatory story along the lines of, ‘my God, we did that to each other. That mustn’t happen. That’s a problem for the world.’ Values help us address the problem but only so long as they are instantiated in some kind of positive institution. Stephen Neff tells all those stories, and many others as well. His blending of the intellectual history and the institutional history and the power relations around them makes for a great read, hugely educative and at times moving. Not right up until today, but he tells the history of international law as it bears on trade and commerce, including in and on China, in a really interesting way. To put it very crudely, the changes in international law as it applies to the economy are quite extraordinary. Again very roughly, in the 19th century, as a last resort, war was permissible as a form of debt collection. You had to try everything else first. If you had tried everything else and it hadn’t worked, then force was permissible in international law. From the first quarter or so of the 20th century, that became the opposite: an act of aggression, and so illegal under international law. The other way around, once again in broad summary, there were probably more constraints on applying what we call sanctions, and secondary sanctions, in the 19th century than today. Physical war is more legally constrained than in the past, but de facto economic combat less so. Oona Hathaway and Scott Shapiro at Yale have a wonderful book about that turn. It is also part of Neff’s broad canvas. Some of these things were quite startling for me. To realise that the international norms that govern trade and investment have, in some cases, changed enormously. In others, there’s continuity. Today’s cross-border investment treaties, which are mainly bilateral treaties without an international organization, codify a much longer-standing customary international law that you can’t just go around taking foreigners’ property. Neff helps us to see very concretely how the past informs today’s norms and institutions, which is a big theme in Williams and Hume."