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Book Review: Law's History and History's Laws (2013)

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A review of Mark Mazower, Governing the World.
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   Law’s History and History’s Laws Review of Mark Mazower, Governing the World   (2012)  Il mestiere di storico  V/2 • 2013 Understanding international law requires an appreciation of its history, and both legal scholars and historians have developed a welcome appetite for critically rethinking the history of international law. In keeping with disciplinary developments (in history more than law), this is not the usual ‘transitional’ history which describes a linear  progression toward an ever more perfect future, but the critical or unofficial history which is attentive to power, as well as to the production of historical knowledge as it tries to understand the past (Chakrabarty, 2000). And yet those at the vanguard of scholarship on international law and history are divided along at least one methodological line of significance. The division lies in how the category of ‘law’, international or otherwise, is understood and treated in methodological terms. One approach works within the inheritance of occidental modernity, and modern law, and accepts a definition for law that relies broadly on traditions of positivism. Although from the perspective of legal theory positivism is highly variegated, such conceptions of law implicitly accept for law and legality a  particular meaning, defined by validity and traceable back to the state in some way. Another approach starts from a position agnostic to the normative claim of positive (state based) law rightfully to be ‘law’, and treats that law (domestic and international) instead as a parochial (rather than universal) practice of authorization, specific to places, practices and people. This practice of authorization may be called ‘jurisdiction’, from  juris-dicere (to speak the law), because it claims not only to speak the law, but also to decide what ‘law’ is. (Rush, 1997, Dorsett and McVeigh, 2012) There are various reasons, conscious or unconscious, as to why a person would take as given, a positivist account of law. It is the necessary posture of the doctrinal lawyer, policy maker, practitioner, and a common one for legal theorists. This remains true even when ‘law’ is the subject of critique, or is ‘pluralised’ by being depicted as rubbing shoulders with other normative regimes. But in the context of histories of (international) law, the ‘given-ness’, or non-problematisation of a  particular definition for law means either that its normativity is accepted as a matter of choice, or is understood implicitly as having been formed or ‘fixed’ at some point outside  the time or place of the history being told. On the other hand, jurisdictional approaches to law and history regard modern law as a set of practices of authorization which are not fixed, final or settled, but ongoing, and always encountering other - often rival - practices of authorization. (Pahuja, 2013) Mark Mazower’s new book, Governing the World: The History of an Idea  is a good example of what may be gained - and what may be at stake - in accepting a positivist account of law when offering an historical account of international law and institutions. What is gained is perhaps audibility and audience. Taking as given international law’s own account of itself (and by extension, state law) as rightfully ‘law’ enables the presentation of a strongly narrative account of the intellectual  history of the idea of internationalism, and its associated projects of governing the world, in its more or less imperial variants. It is heuristically useful for the book to have ‘made strange’ the idea that people in Accra may in some sense be ‘governed’,  by bureaucrats from Washington, New York or Geneva, and according to the same general (‘technical’) principles used to govern people in Bengal, Kingston or Bogota. Useful too, is the way the variegations in the idea of internationalism are drawn out,  placed in the cultural-historical context of their emergence, and an account given of how those variegated ideas have found their way into contemporary institutions. Moving from the Great Power internationalism of the Concert of Europe in 1815, through the democratic internationalist utopias of the mid nineteenth century, through  peace movements, free trade utopias, populist, capitalist, communist and some more eccentric variants, and the influence of those ideas on the formation of international institutions, we are presented with a dynamic and readable story of which people with what projects shaped the history of international law. This is embedded in a rich account of both geo-political and political-economic rivalry. Its agonic axis is the oscillation between the Great Power internationalism of the Concert of Europe, with its Old Europe emphasis on diplomats, power and intrigue, and its putative opposite, an Anglo-American (and finally American) technocratic internationalism organized around international law, institutions and administration. The account is unashamedly a history of the present. The book begins not with Metternich himself, but Henry Kissinger’s doctoral thesis on Metternich. When our gaze is directed back, it is through the eyes of less antique statesmen; figures like Woodrow Wilson and Winston Churchill, or Margaret Thatcher and Tony Blair. And when we get to the end, the payoff comes in the form of what a more detailed understanding of the history of the idea of governing the world might offer us for reimagining a collective global future. But it is here we see what might be at stake in the acceptance of a positivist account of law in telling histories of international law. Its particular manifestation here is in the mystique of sovereignty, which returns in a strangely nostalgic register at the end of the book. Mazower is not naïve about international institutions - he has illustrated clearly that putatively universal institutions can work perfectly well with the rule of exceptionalist states. And his account of a commodified, individualistic world of shadowy corporate power, and philanthropic anti-politics, in which superficially networked consumers are rapidly losing the postwar gains of the welfare state is nicely paranoid. And yet the grain of hope he finds in this dystopia is sovereignty; ‘[…] what does seem novel, in historical terms, is the collapsing importance of the public bodies that have given national sovereignty meaning, and the way that organs of international government and regulation have come to assail the internal legitimacy, capacity and cohesion of individual states.’ (421) But sovereignty, like nostalgia, is not what it used to be. No matter how universal its claim, sovereignty is itself a parochial  practice of authority, with a history specific to time and place. It is a practice of  jurisdiction (Pahuja, 2013) taken up as a promise by most of the world in the aftermath of empire because of the spread of the  Jus Publicum Europeum  as the rightful law of encounter during the imperial period, and the monopoly on legal  personality held by its subject, the nation-state. In most of the world, it has been  experienced ever since only as loss, for it rapidly became clear that for the Third World, sovereignty was always porous, open to penetration by the ‘developed’ world,  because it is embedded in a developmentalist frame which necessitates the continual transformation of non-European states from primordial particularity to modern, universal statehood. In the context of histories of international law, one consequence of accepting a  positivist account of law can be to end up in a position of reform, no matter how damning the foregoing critique has been: ‘[g]etting the institutional architecture right is the subject of endless […] reform proposals. But there are two kinds of more fundamental change that will need to take place too.’ (425) But another consequence of accepting international law’s claim to right (if not efficacy) can be to rehearse the discipline’s Eurocentrism, notwithstanding a  pluralizing intention. The concern here is that taking sovereignty as a general experience of public life means taking the history of European statehood, and turning it into the teleological trajectory of the rest of the world. (Chakrabarty, 2000) The ‘failed states’, for example, which appear so often in Mazower’s critique of the turn to global executive administration, and which, with their ‘in danger’ and ‘borderline’ cousins cover most of the Fund for Peace map, could be read as pitifully afflicted and in need of development assistance. They could also be read as exemplars of what happens when one keeps trying, over 60 years, to generalize through force if necessary, the jurisdictional form of the nation-state in places with different forms of law, economy and associational life. But even if ‘public’ should be understood in terms of the demos  of European statehood, it is not clear either that the financial capital Mazower fears has not laid long at its heart. It is possible that the faltering state of the 17 th  century - in England at least - was made stable against its own associational rivals through a relationship of indebtedness between the King and the newly monied merchants, and the invention of the ‘national debt’. This instrument created in the creditor, a vested interest in the continuing existence of the juridical form of the borrower: the state. (Carruthers, 1996) That is a relationship yet to be told in terms of the emergence of international law, the place of the Company and its relation the authority Mazower yearns to ‘return’ to the public. But that would be another story… Sundhya Pahuja, Professor of Law, Melbourne Law School, University of Melbourne & Research Professor in Law, SOAS, University of London !"#$"%&'()*+ "#$%&' (')*+),)+-./ !"#$%&'%()%*%&+ -."#/01 !#*2'#)#&%() 34#.+42 (&5 6%*2#"%'() 7%880"0&'0  0('#1)23 45#6%+&#-. 7+%&&/ 8999:; <+=1% >; ()++=-'%+&/ 9%2: #8 9(/%2()1 !#)%2%'* (&5 ;("<02* %& 240 -&+)%*4 =%&(&'%() >0$#).2%#&  07+#51%-35 45#6%+&#-. 7+%&&/ ?@@@:; A')=55)2' "3+&%-- )5B A')=5 C1D%#2'/  ?."%*5%'2%#& / 0E3=-F%B2%G()6%5B#&'/ 89?8:;  A=5B'.) 7)'=H)/ IJ)K& 3L M513=5-%+N O P=+#&B#1-#35)F O113=5- 3L Q5-%+5)-#35)F J)KR 089?S: @#&5#& >0$%0A #8 B&20"&(2%#&() @(A  / TS; 7%-%+ E=&'/ IO5 OF-%+%B P=+#&B#1-#35N (3+$3+%)F U+)1%& 3L J)KR T C"%88%24 @(A >0$%0A   0?@@V: ?WW;
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