H-Diplo/ISSF Review Essay 63 on To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–18708 min read

This history of “the legal imagination” (1) from 1300 to 1821 describes the evolution of legal thought about matters of international significance from the Middle Ages to the nineteenth century. These include the rise of the state, religious diversity, colonial and imperial expansion, and the shift from agricultural to commercial economies. Each of these developments gave rise to important controversies that were framed, at least in part, in legal terms. Legal arguments provided justifications for and against various projects, beginning with the centralization of state authority. Lawyers and legal thinkers – not all legal thinkers were lawyers – drew on existing legal and philosophical vocabularies that included customary and natural law, royal prerogative, Roman law, lex mercatoria, and the emerging discourse of rights. They also turned to the emerging sciences of physics and biology for arguments and examples. Old ways of thinking seemed inadequate as did many existing norms and practices. Lawyers and legal thinkers nevertheless for the most part built on existing vocabularies but used them in novel ways; they resorted to a kind of conceptual and linguistic bricolage that over time resulted in transformations.

H-Diplo | ISSF Review Essay 63

Martti Koskenniemi.  To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–1870.  Cambridge: Cambridge University Press, 2021.  ISBN:  9780521768597 (hardback, $195.00); 9780521745345 (paperback, $99.99).

Reviewed by Richard Ned Lebow, King’s College London

Published 10 March 2022 | http://issforum.org/to/RE63

Edited by Diane Labrosse and Seth Offebach
Web and Production Editor:  George Fujii

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This history of “the legal imagination” (1) from 1300 to 1821 describes the evolution of legal thought about matters of international significance from the Middle Ages to the nineteenth century. These include the rise of the state, religious diversity, colonial and imperial expansion, and the shift from agricultural to commercial economies. Each of these developments gave rise to important controversies that were framed, at least in part, in legal terms. Legal arguments provided justifications for and against various projects, beginning with the centralization of state authority. Lawyers and legal thinkers – not all legal thinkers were lawyers – drew on existing legal and philosophical vocabularies that included customary and natural law, royal prerogative, Roman law, lex mercatoria, and the emerging discourse of rights. They also turned to the emerging sciences of physics and biology for arguments and examples. Old ways of thinking seemed inadequate as did many existing norms and practices. Lawyers and legal thinkers nevertheless for the most part built on existing vocabularies but used them in novel ways; they resorted to a kind of conceptual and linguistic bricolage that over time resulted in transformations.

The book begins in fourteenth century France with the use of corpus iuris by upwardly mobile lawyers to legitimize the authority of their king, at home and abroad. These lawyers became the hired guns of the monarchy, a story that repeats itself throughout the course of the book. The overall thrust of victorious legal arguments was to justify practices like state authority, property rights, slavery, colonies, and wars. To be sure, there are other, critical voices, whom Koskenniemi discusses with sympathy. Subsequent chapters address the expansion of Spain into the New World, the rule of law, French absolutism, the emergence of European public law, French colonies and slavery, the rise of England and the law governing its commercial empire, German development of the science of the state, and German understandings of nationalism and freedom. In the course of his analysis Koskenniemi discusses the writings of well-known writers on the law (for example, Hugo Grotius, Samuel von Pufendorf, Immanuel Kant) and little known ones (for example, Guillaume de Nogaret, Giovanni Botero, Georg Friedrich von Martens).

A brief conclusion notes that one of most important consequences of the rise and evolution of legal discourses was the extension of law to what we now consider the international law. However, the international was always approached from a domestic perspective. Spanish, French, English, and Germans thought differently about what would become international law because their approaches were embedded in domestic discourses and practices. Local experience and tradition trumped any kind of universal reasoning. Above, all, Koskenniemi suggests, the rise of professional discourses, legal ones included, and mastery of them conferred power. They advanced individual careers and the projects for which these discourses were developed and mobilized. Their justification, stabilization, and critique of practices at home and abroad had a significant impact on the distribution of power. A primary example is the notion of dominium, drawn from the Book of Genesis. It was integrated with Corpus iuris and eventually took two forms: dominium iurisdictionis, the ruler’s power over others, and dominium proprietatis, the owner’s power over people and things. They provided the basis and justification for state authority and property rights, and ultimately came close to naturalizing both.

Koskenniemi celebrates the legal imagination and its centrality to the practice of international relations and our thinking about it. The story he tells also supports a darker narrative about the ability of those in power to recruit legal minds to justify practices that were at odds with religious principles or the conventional ethics of the day. To be fair, in every instance there were lawyers who argued the other side, but they were rarely successful. Koskenniemi’s analysis demonstrates the cleverness, imagination, and success of lawyers and other thinkers who turned to the law to make arguments that resonated with political leaders. The value added to his treatment of individual legal thinkers is to show how they fit into a long-term transformation of legal discourses. Koskenniemi provides a satisfying account, not only of the evolution of legal discourses but of the nature and rise of legal thinking and influence.

Koskenniemi’s narrative raises further questions. Why did the law became such a prominent discourse in international as well as domestic affairs? His analysis suggests that it was due to the influence of the Catholic Church and path dependency even if he does not make this argument. From late Roman times, Church councils met periodically to debate and decide controversies, many of which were doctrinal in nature. Church authorities contrasted their decisionmaking with that of the Roman Empire, where naked force so often prevailed. They relied instead on disputations, which consisted of debate and resolution. As canon law developed, those disputations became more legal. The church made all kinds of decisions that went beyond narrow doctrinal questions, and here too debate and legal argument played a central role. When states expanded their power at the expense of the Church – and of local authorities — they too needed to mask as far as possible their aggrandizement. They needed justifications, and lawyers provided it. This established a civil tradition that was then extended to what became international politics.

A follow-on question is the extent to which law as a dominant discourse had a constraining or enabling effect. International lawyers believe the former, and are, of course, strongly motivated to do so.[1] The issues and controversies covered in this book offer evidence for both interpretations. There seem to be periods in European history, or certain kinds of questions, when law was constraining. There is also true in the modern era, where evidence can also be adduced to support both interpretations. This is a major theme of Koskenniemi’s earlier book, The Gentle Civilizer of Nations.[2] There is undoubtedly much merit comparing the enabling and constraining effects of legal argument over the larger run of European history, a project beyond the scope of this book but certainly facilitated by it. In this connection, we must recognize that enabling and constraining are empirical judgments because they are embedded in normative positions. If we think empire to be a good thing, law was initially enabling and subsequently constraining, or the reverse if we disapprove of empire.

It is also interesting and important to know why certain arguments and discourses won out over others. Koskenniemi offers some thoughts about the this question, arguing for a better “fit” of certain discourses with changing beliefs about how the world works and the extent to which human practices should be modeled on a religious ideal or empirical observations about how humans actually behave. Here too, he creates a template for further research, not only about the law, but of the consequences of modernization for it. The even more profound question, of which Koskenniemi is fully cognizant, is how discourses shape our thinking about the world, and in particular, the kinds of projects we want to pursue, how they should be advanced, how we evaluate and respond those of other actors, and the conditions in which we should exercise restraint. He offers some passing thoughts on this question in different chapters but could have said more in his conclusion.

This is a remarkably large – over 1100 pages — and ambitious book. Koskenniemi reveals, but never flaunts, his erudition and familiarity with a wide range of lawyers and philosophers writing in Latin, French, German, Italian, and English. His treatments of these practitioners and thinkers reveals knowledge of their texts and relevant secondary sources. His interpretations are all defensible and many of them are convincing. It is an extraordinary work of scholarship.

 

Richard Ned Lebow is Professor of International Political Theory in the War Studies Department of King’s College London, Bye-Fellow of Pembroke College, University of Cambridge, and James O. Freedman Presidential Professor, Emeritus at Dartmouth College. He is a Fellow of the British Academy. His most recent books are Reason and Cause: Social Science in a Social World (Cambridge, 2020), Between Peace and War: 40th Anniversary Revised Edition (Palgrave-Macmillan, 2020), Ethics and International Relations: A Tragic Perspective (Cambridge, 2020), The Quest for Knowledge in International Relations: How Do We Know? (Cambridge, forthcoming), Taming Sino-American Rivalry (Oxford, 2020), and Justice, East and West, and International Order (Oxford: forthcoming), the last two coauthored with Feng Zhang.

 

Notes

[1] See Ian Hurd, How to Do Things with International Law (Cambridge: Cambridge University Press, 2017), for a discussion of this belief and a powerful critique.

[2] Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2009).