Quiroga-Villamarín on the Material Turn in the History of International Law

Gated, but very interesting: Beyond Texts? Towards a Material Turn in the Theory and History of International Law, by Daniel Ricardo Quiroga-Villamarín, in the Journal of the History of International Law, from a master’s thesis on Shipping Containers, Materiality, and Legal History:

While the history of international law has been mainly dominated by intellectual history, the neighboring humanities and social sciences have witnessed a ‘material turn.’ Influenced by the new materialisms, historians, sociologists, and anthropologists have highlighted the role of objects and nonhuman infrastructures in the making of the social. Law, however, has been conspicuously absent from these discussions. Only until recently, things began to be studied as instruments of – global – regulation. In this article, I trace an intellectual history of the intellectual history of international law, contextualizing it since its inception in the so-called ‘Cambridge School’ to its spread into the legal field via the Critical Legal Studies movement and its final import into international law in the last two decades. I conclude arguing that international legal historians can depart from the ‘well-worn paths’ of intellectual and conceptual history to engage with the materiality (past, present, and future) of global governance.

–Dan Ernst

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Legal Histories and Historians in Socialist East Central Europe

Socialism and Legal History: The Histories and Historians of Law in Socialist East Central Europe, edited by Ville Erkkilä and Hans-Peter Haferkamp has been published in the series Routledge Research in Legal History:

This book focuses on the way in which legal historians and legal scientists used the past to legitimize, challenge, explain and familiarize the socialist legal orders, which were backed by dictatorial governments.  The volume studies legal historians and legal histories written in Eastern European countries during the socialist era after the Second World War. The book investigates whether there was a unified form of socialist legal historiography, and if so, what can be said of its common features. The individual chapters of this volume concentrate on the regimes that situate between the Russian, and later Soviet, legal culture and the area covered by the German Civil Code. Hence, the geographical focus of the book is on East Germany, Russia, the Baltic states, Poland and Hungary. The approach is transnational, focusing on the interaction and intertwinement of the then hegemonic communist ideology and the ideas of law and justice, as they appeared in the writings of legal historians of the socialist legal orders. Such an angle enables concentration on the dynamics between politics and law as well as identities and legal history.

Studying the socialist interpretations of legal history reveals the ways in which the 20th century legal scholars, situated between legal renewal and political guidance gave legitimacy to, struggled to come to terms with, and sketched the future of the socialist legal orders. The book will be a valuable resource for academics and researchers working in the areas of Legal History, Jurisprudence and Philosophy of Law and European Studies.

About the editors: Ville Erkkilä is a Postdoctoral Researcher at the Center for European Studies, University of Helsinki, Finland. Hans-Peter Haferkamp is Full Professor of Private Law and History of German Law. He is the Director of the Institute of Modern History of Private Law, German and Rhenish Legal History, University of Cologne.

TOC after the jump.

--Dan Ernst

 Introduction: Socialist interpretations of legal history
Ville Erkkilä

PART I Framing the socialist legal historiography

1 The transformations of some classical principles in socialist Hungarian civil law: The metamorphosis of ‘bona fides’ and ‘boni mores’ in the Hungarian Civil Code of 1959
András Földi

2 We few, we happy few? Legal history in the GDR
Martin Otto

3 Roman law studies in the USSR: An abiding debate on slaves, economy and the process of history
Anton Rudokvas and Ville Erkkilä

4 Strategies of covert resistance: Teaching and studying legal history at the University of Tartu in the Soviet era
Marju Luts-Sootak

5 The Western legal tradition and Soviet Russia: The genesis of H. J. Berman’s Law and Revolution
Adolfo Giuliani

PART II Legal historians of socialist regimes

6 Juliusz Bardach and the agenda of socialist history of law in Poland
Marta Bucholc

7 Valdemars Kalninš (1907–1981): The founder of Soviet legal history in Latvia
Sanita Osipova

8 Getaway into the Middle Ages?: On topics, methods and results of ‘socialist’ legal historiography at the University of Jena
Adrian Schmidt-Recla and Zara Luisa Gries

9 Roman law and socialism: Life and work of a Hungarian scholar, Elemér Pólay
Éva Jakab

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Stern on Proximate Causation in Legal Historiography

Simon Stern. University of Toronto Faculty of Law, has posted Proximate Causation in Legal Historiography, which is forthcoming in History and Theory (2020):

The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals, and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes.

To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine, and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely.

To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play a more attenuated role, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography, and to question their persuasive force.

--Dan Ernst

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Balkin on Lawyers, Historians, and the Constitution

Jack M. Balkin, Yale Law School, has posted Lawyers and Historians Argue About the Constitution, which is forthcoming in Constitutional Commentary 35 (2020):

Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do.

According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions.

To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either.

The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it employs history for too limited a purpose and treats too much of history as unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.

--Dan Ernst

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Tacitus: The Continuing Message

Historytoday.com - The Iron Curtain did not flutter. No masses chipped the wall that scarred Berlin and symbolised the restrictions and repression endured by millions in Eastern Europe. When History Today published Irene Coltman Brown’s article Tacitus and a Space for Freedom in 1981 informers organised by the Stasi in the German Democratic Republic still spread uncertainty and fear. Tacitus (AD 56-117) wrote of the Stasi’s Roman predecessors who ‘divested the people of the free exchange of words’. His works, including the Annals and Histories, present a detailed pathology of power under the Roman emperors and were called upon by Coltman Brown to analyse the politics of the 20th century. History Today labelled the article ‘The continuing message’. But what exactly is that continuing message?

Since the 16th century Tacitus has enjoyed a reputation as a political realist. His Annals in particular reveal the slippery mechanics of rule: the ‘secrecies of the imperial family; the advice of confidants and soldiers’ services’, in the words of an imperial adviser. A reader of Tacitus and friend of Machiavelli, Francesco Guicciardini (1483-1540) succinctly stated that the historian taught subjects how to comply with a tyrant and the tyrant how to check his subjects. Generations of subsequent readers, eager to find lessons for the present in the past, were quick to adapt Procrustes’ method: like the mythical robber who made his victims fit his bed by severing or straining their limbs, they cut and stretched meanings to make Tacitus’ message fit their needs. They ignored the historian’s ironies and perplexing ambivalences, content with their selective readings of his works but blind or blinded to the philosophical dimension that caught Brown’s interest some 30 years ago.

She joined a minority of scholars who appreciated Tacitus’ moral complexity and accentuated his ambivalence. She lingered over his vexed hesitation in the face of the ‘dreadful peace’ at Rome: Roman autocrats, it is true, stifled individual freedom, but they also provided stability for society; they suppressed their subjects who were, however, all too ready to stoop down in servitude. And the Germanic tribes – Rome’s northern nemesis – warded off her rule, but only to war against one another. Tacitus, the philosopher, thought in adversatives which, though tightly woven into his historical accounts, were less often savoured than sundered.

Of Tacitus’ texts none suffered more cuts to its intricacy than his weirdly influential booklet Germania, or On the Origin and Mores of the Germanic Peoples. An account of the Teutonic tribes east of the Rhine, it is also and more profoundly a subtle reflection on core human values.Yet after its rediscovery in the 15th century it was quickly reduced and celebrated as the birth certificate of the German people. For most readers it contained a simple message: it presented a pure, heroic and virtuous people; it incriminated its author’s contemporaneous Romans; and it provided a lesson in character for German youth. When in Munich in 1933, at the height of nationalistic infatuation with Tacitus’ Germania, Cardinal Michael von Faulhaber attempted a subtler reading, his speech was burned by members of the Hitler Youth and two shots were fired at his residence.

Brown, however, who discusses Tacitus’ Germania in some detail, reveals the contradictions and rightly emphasises the historian’s ‘weigh[ing] the attractions and the cost of the barbarian alternative [i.e., to Rome’s civilisation]’. Once again there are two sides to a coin: the simple Germanic lifestyle affords higher morality – but at the price of primitiveness. In recent years interpretations of Tacitus’ works have become increasingly nuanced and a simplistic view of him as a teacher of politics or morals looks exceedingly implausible – but not any more so than would have the crumbling wall in 1989 seemed in 1981. Thus, given Tacitus’ many afterlives, one ‘continuing message’ might be that it is each reader’s responsibility to look carefully on the past when studying it in the light of the present.

Christopher B. Krebs is Associate Professor of the Classics at Harvard University and the author of A Most Dangerous Book: Tacitus’ Germania from the Roman Empire to the Third Reich (W.W. Norton, 2011).

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