On international legal method

Orford, Anne

doi:10.1093/lril/lrt005

Cited by 87 publications

(11 citation statements)

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“…Law is a precedent-prone (and accordingly past-oriented) professional culture. 158 Therefore, it is logical to assume that if in such a culture something was nonetheless forgotten, surely that neglected past could not have much relevance to the present. Nevertheless, as briefly demonstrated in this part, with regard to the history of ICL, historical research that uncovers a forgotten legal past can have contemporary significance.…”

Section: Is the Pre-second World War History Of Icl Important?mentioning

confidence: 99%

The (Failed) Attempt to Try the Kaiser and the Long (Forgotten) History of International Criminal Law: Thoughts FollowingThe Trial of the Kaiserby William A Schabas

Bohrer

2020

Isr. law rev.

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The conventional historic account maintains that international criminal law (ICL) was ‘born’ after the Second World War. This account is incomplete, as William Schabas's book, The Trial of the Kaiser (2018), captivatingly shows by richly portraying the (aborted) First World War initiative to try the German Kaiser before an international tribunal. However, this article (after providing an overview of Schabas's book) argues that Schabas's account of a First World War ICL ‘birth’ is also incomplete. ICL during the First World War era was but one link in a much longer historical chain. The essay demonstrates this fact by presenting certain elements of the long (forgotten) history of ICL, which provide answers to questions that have been left unanswered, not only by the conventional account (of a Second World War ICL ‘birth’) but also by Schabas's account (of a First World War ICL ‘birth’). As the article discusses, the unveiling of a greater ICL history indicates that international criminal tribunals are not a modern innovation, and reveals the origins of ‘crimes against humanity’, of ‘aggression’ and of the universal jurisdiction doctrine. The essay further discusses reasons for the non-remembrance of the long history of ICL, the importance of acknowledging that history, and the likelihood of it becoming widely acknowledged in the near future.

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Section: Is the Pre-second World War History Of Icl Important?mentioning

confidence: 99%

The (Failed) Attempt to Try the Kaiser and the Long (Forgotten) History of International Criminal Law: Thoughts FollowingThe Trial of the Kaiserby William A Schabas

Bohrer

2020

Isr. law rev.

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“…Finally, and most closely aligned with general conceptual history, the moments when international legal concepts gain popular understandings and political deployments in wider civil society discussionsconsider the popular discourse on the use of force and the Iraq War, 82 or everyday discussions of the work of the International Criminal Court in African nations 83may prove to be the most important sites for shifts in meaning. [36] A second source problem is translation and nationality. Translation and comparison of similar concepts across jurisdictions and legal languages seem almost a necessity for histories of international legal concepts.…”

Section: Adaptations 45mentioning

confidence: 99%

“…35 That task should focus on movements and changes in 'juridical thinking', which recognises that international law is always inescapably linking past to present: claims about the meanings of concepts, language and norms hold their political or legal force precisely by moving across space and time, to link the past with the present, the specific with the universal, and so on. 36 Orford also rejected taking method as a cumbersome frame of theoretical demands or injunctions required for 'real' and 'proper' history. 37 She instead approaches it as a wider set of theoretical reflections to which history, among other disciplines and perspectives, might usefully contribute.…”

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confidence: 99%

Ambivalence, anxieties / Adaptations, advances: Conceptual History and International Law

Clark¹

2018

Leiden Journal of International Law

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Scholars of the history of international law have recently begun to wonder whether their work is predominantly about law or history. The questions we ask – about materials, contexts and movements – all raise intractable problems of historiography. Yet, few scholars have turned to historical theory to think through how we might go about addressing them.This article works towards remedying that gap by exploring why and how we might engage with historiography more deeply.Section 2 shows how the last three decades of the ‘turn to history’ can be usefully read as a move from ambivalence to anxiety. The major works of the 2000s thoroughly removed the pre-1990s ambivalence to history, offering brief considerations about method. Recent efforts building on those works have led to the present era of anxiety about both history and method, raising questions around materials, contexts and movements. But far from a negative state, this moment of anxiety is both appropriate and potentially creative: it prompts us to rethink our mode of engaging with historiography.Section 3 explores how this engagement might proceed. It reconstructs the principles and debates within conceptual history around the anxieties of materials, contexts and movements. It then explores how these might be adapted to histories of international law, both generally and within one concrete project: a conceptual history of recognition in the writings of British jurists.Section 4 concludes by considering the advances achieved by this kind of engagement, and reflects on new directions for international law and its histories.

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“…71 Thus, the history of the independent effect of international laws should be researched, and genealogical accounts are crucial for such research because the internal logic of the law relies "upon precedent, customs and patterns of argument stretching back [in time]." 72 Admittedly, during power struggles, legal uncertainty often exists, as opponents tend to disagree on the interpretation of the relevant law. But the law still has some influence, forcing the sides to structure their claims in a certain manner and limiting the legitimate interpretational possibilities.…”

Section: Genealogical Accountsmentioning

confidence: 99%

International Criminal Law's Millennium of Forgotten History

Bohrer¹

2016

Law hist. rev.

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At the close of World War II (WWII), Winston Churchill suggested summarily executing the remaining Nazi leadership. Franklin Delano Roosevelt disagreed, insisting on prosecuting them in an international military tribunal. This is considered the “birth” of International Criminal Law (ICL), following a consensus that “[t]he Nazi atrocities gave rise to the idea that some crimes are so grave as to concern the international community as a whole.” A few earlier instances of penal action against violators of the laws of war are acknowledged, but they are dismissed as unrelated to current ICL, because (presumably) these cases are sporadic domestic legal actions that lack a common doctrine.

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On international legal method

Cited by 87 publications

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The (Failed) Attempt to Try the Kaiser and the Long (Forgotten) History of International Criminal Law: Thoughts FollowingThe Trial of the Kaiserby William A Schabas

The (Failed) Attempt to Try the Kaiser and the Long (Forgotten) History of International Criminal Law: Thoughts FollowingThe Trial of the Kaiserby William A Schabas

Ambivalence, anxieties / Adaptations, advances: Conceptual History and International Law

International Criminal Law's Millennium of Forgotten History

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