International Law and Justice Working Papers - IILJ

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Tartu (historically also Dorpat and Iur’ev), Estonia, in their socio-political context. The timeframe of the activity of Tartu’s five international law professors – August von Bulmerincq, Carl Bergbohm, Vladimir Hrabar, Ants Piip and Abner Uustal – covers the period since the inception of modern international law by the “men of 1873” roughly until the end of the Cold War (1855-1985). The hope and ambition underlying the project is that turning one’s attention to the question “what is it that academic international lawyers are doing?” instead of the archetypical lawyers’ question “what is the law?” bears potential of providing new insights about the practice of international law. The central idea is that context is crucial for understanding the practice of international law, i.e. international legal arguments of the representatives of professionals in the ‘field’ of international law. 2 International law has emerged from the practical necessity, not or not only from needs for philosophical speculation. Therefore, it is insufficient to explore claims, positions and arguments presented within the framework of international law merely as part of ‘pure’ doctrinal history. However, in the legal scholarship, this insight is not as self-evident as it may seem. The legal scholarship and international lawyers typically claim their authority from the principles of neutrality, universality, rationality and objectivity. The central strategy of the positivist legal tradition has been to claim the separation of law from politics. The positivist tradition plays down the political, socioeconomic, historical context of the legal arguments and doctrines and highlights the dangers of relativization. 2 For the development of the sociological concept of fields, see e.g. P. Bourdieu, In Other Words. Essays Towards a Reflexive Sociology, Transl. by Matthew Adamson, Stanford University Press, 1990; The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings Law Journal 1986, pp. 814-854.
When sociologically interested lawyers turn to the past of their discipline, they should do so with some caution, at least in order to avoid becoming (bad) amateur historians. As a minimum, familiarity with and internalization of methodological debates in the science of history is required. A leading contemporary author on the methods of writing intellectual history, Quentin Skinner, the Regius Professor of History at Cambridge University, has emphasized the importance of situating historical texts in their intellectual and linguistic context, in order to establish the purpose their authors had in mind when advancing their arguments. 3 In his work, Skinner has discussed several fundamental problems that arise from interpreting old texts. One such problem, for instance, is whether the historian of ideas should characterize certain beliefs or statements of historical agents as “false” or erroneous. 4 Skinner claims not and argues that the only standard such statements and beliefs should be measured with is some generally accepted standard of epistemic rationality. Historians would merely be reporting that it was not an appropriate belief for that particular agent to have espoused in that particular society at that particular time. 5 A related difficulty is the temptation to judge somebody in the past not on the basis of what he or she knew but what we subsequently know. Skinner argues that all serious utterances are characteristically intended as acts of communication: “But to argue is always to argue for or against a certain assumption or point of view or course of action. (…) To put the point in another way, there is a sense in which we need to understand why a certain proposition has been put forward if we wish to understand the proposition itself. We need to see it not simply as a proposition but as a move in an argument. 3 Q. Skinner, Visions of Politics, Volume 1: Regarding Method, Cambridge University Press, 2002. 4 For instance, Bulmerincq called Kant’s project of a Staatenstaat (today we would say: international organization) a ‚mistake’ since international law had to be founded on the independence of States. Die Systematik, p. 144. 5 Skinner, op. cit., p. 37-38.
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International Law and Justice Working Papers - IILJ

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