Theorising Order in the Shadow of War. The Politics of International Legal Knowledge and the Justification of Force in Modernity

Hendrik Simon

doi:10.1163/15718050-12340150

Abstract

Abstract The History of International Law lacks systematic studies on the link between legal scholars and practices of justifying war. This missing analytical link has for a long time given the impression that legal scholars describe ‘state practice’ in an ‘objective’, unpolitical way. Contradicting this impression, the article turns to the politics of legal scholars in the genesis of the modern war discourse. It reflects on the fateful entanglement of violence, law and politics, but nevertheless distinguishes between ‘objective’ and ‘political’ scholarship on the basis of Hans Kelsen’s work. Furthermore, the article illustrates the politicisability of legal scholars in selected historical cases of the ‘long 19th century’ (1789–1918). In all cases, two hearts pounded in lawyers’ chests: one scientific, the other political. As will be shown, the modern war discourse is shaped by a phenomenon that enables scholars to expand the intrinsic limits to the political instrumentalisation of law: ‘multi-normativity’.

Highlights

The Politics of Legal Knowledge – A Missing Link in the History of War JustificationsParadoxically or not, at the core of the discipline of Inter national Law lies a phenomenon of a highly political nature: the entanglement of the justification and the critique of violence.1 the historical reconstructions of war discourses have been constitutive for the emergence of international law as a scientific discipline.2 an analytical imbalance in favour of doctrinal histories can clearly be identified
The History of International Law lacks systematic studies on the link between legal scholars and practices of justifying war. This missing analytical link has for a long time given the impression that legal scholars describe ‘state practice’ in an ‘objective’, unpolitical way
When in 1796 German legal scholar Georg Friedrich Martens was commenting on recent developments in international law, he recognised the dialectic liaison between violence and order: The war discourse in Revolutionary France had been radicalised

Summary

Introduction

The Politics of Legal Knowledge – A Missing Link in the History of War Justifications. To fill the gap between practice and theory is highly important for the further orientation of the History of International Law in its own right.3 As part of such an endeavour, the present article focusses on a specific aspect of the analytical gap between theory and practice: It reflects on the politics of legal knowledge in historical war discourses. Even more: In writing histories of international law and its politics, these ambivalences increase, as we are confronted with our own standpoints, and with those of the authors we write about Reconstructing these Standpunkte developed by lawyers in specific historical contexts may help us to better understand the role of legal scholars in the field of tension between objective impartiality and political interests, and the authority, politicisability and essential political unavailability of law. Simon examination of 19th-century legal theory and political practice; it constitutes a Clausewitzian myth (or fallacy) in the History of International Law.. This makes it an ideal starting point for reflecting on the politics of legal knowledge and the justification of force in modernity

Revolutionary Mind-Sets

Conclusion and Outlook