Most readers of this journal may regard the history of international law as a distant, arcane, and probably boring subject. They may not always be wrong, although, since the turn of this century, the discipline has moved much closer to the social sciences in general and to global (economic) history in particular. Two names stand out here. Lauren Benton, on the one hand, has developed a thoroughly social, grassroots approach to legal institutions in various colonial or post-colonial contexts, typically marked by strong patterns of legal pluralism. She thus studies how, depending upon their race, community, or social position, people received or fought for different, unequal packages of rights, including economic ones: land ownership, the capacity to contract and take on debt, access to different types of courts, etc. In turn, this line takes her to more territorial notions of jurisdiction and sovereignty, hence to the relations between sovereigns of various standings, as formalized in treaties, court decisions, or edicts emitted by strong men. Imperial powers usually have the upper hand in these dealings, although contestations, power relationships, negotiations, and legal innovation never stopped in the peripheries (Benton, Lauren, and Lisa Ford. Rage for Order: The British Empire and the Origins of International Law 1800–1850. Cambridge, MA: Harvard University Press, 2016).
Martti Koskenniemi, on the other hand, is a legal scholar of great lineage and a former practitioner of international law. His now-classic history of his discipline between 1870 and 1960 (The Gentle Civilizer of Nations. Cambridge: Cambridge University Press, 2001) reached far beyond the legal academy: here was a history of international law as a genealogy of political ideas, or discourses, on sovereignty and on how the international realm can be legitimately governed. For more than 20 years, this book has had considerable influence, particularly on authors exploring how international lawyers have framed the relations between dominant powers and the non-Western, non-Christian, non-white world. Think, for example, of the early modern colonies in the Americas and the various models of protectorates or colonial sovereign debts. This perspective may then converge at times with the bottom-up, almost anthropological approach of Lauren Benton and her fellow travelers.
Koskenniemi’s new, 1100-page opus, To the Uttermost Parts of the Earth (2021), is a prequel to The Gentle Civilizer and covers the development of international law from the late medieval era until the mid-nineteenth century. The selective reader may thus pick and choose sub-episodes or authors, to great benefit. But with more time and ambition, she may proceed through the whole book, closely following its two main threads. For Koskenniemi, the early efforts by the fourteenth-century French kings to differentiate their private domain from their royal jurisdiction marked a first attempt to separate the private and the public, or private property and sovereignty. At the same time, this assertion of royal authority came with a self-conscious attempt to draw the line between the domestic and the foreign, hence to conceptualize “the international.” Here is the keel of this book, which steadies the argument as it progresses across five centuries, at least ten countries, and dozens of authors who tried to provide effective responses to these twin dilemmas. This point is also where the key theme of “legal imagination” comes in: the law does not blindly reflect the coalition of vested interests that underpins it, as the Marxists and the Law & Economics scholars assume, each in their own way. A given problem, set in a given political-economic context, can be legally addressed in different ways, as Max Weber has already underlined. By implication, there is creativity, conflict, and mutual influence in the craft of legists, lawyers, and diplomats.
For sure, the conceptual language in this book is often challenging. Anyone who wants to explore the relationship between the (re-interpreted) Roman jus gentium and the Christian doctrine of natural laws will have their plate full. But economic historians have long known that the private/public and domestic/foreign oppositions are central when thinking about economic development or market governance. Thus, they are not entirely in foreign territory. Simply read Adam Smith, Karl Marx, and Douglass North again if you have a doubt!
Koskenniemi offers on this count a uniquely deep perspective on how this conceptual grammar was formed in the long run and how it eventually opened up to classic political economy, hence, in the long run, to modern economic thinking. Meanwhile, he also underlines the loose, indirect relations to old conceptions of international space. For instance, the link between free trade and the conception of the early-modern Law of the Seas as an international common good is quite striking, especially if we think more generally about the natural environment. The contrast between early liberal developments in Europe and the brutal, illiberal legal inventions applied in the Indies, East and West, is sobering; examples include the legal justification of the slave trade or the legal privileges granted to the East India Company: that “one Body Corporate and Politick.”
Some figures here stand out, like the Dutch philosopher, theologian, and diplomat Hugo Grotius (1583–1645): he appears as an early proponent of both an open, property-owning, pluralist civil society and a law-based sovereign, who allowed merchants to trade and contract in the international sphere, including with “infidels” (Chapter 4). If you are looking for a hero in this book, here he is. The core chapters (8–10) then deal with the English experience, from Locke to Blackstone, Mansfield and Smith. A more involved discussion of the latter’s Lectures on Jurisprudence (1762–66) would certainly have been of great interest to economists. But they may benefit from the long development of the international projection of England’s legal institutions as instruments of market governance. The common law’s origins outside of royal authority made it easier to envisage it as a direct expression of natural laws, hence to endow it, at least potentially, with a de facto transnational character. How far English merchants could actually trade abroad under English law, say, from the 1770s onward, remains an open question. The last two chapters, on Germany and the Holy Roman Empire, move further into the hard themes of the modern bureaucratic State and the emergence of classic, nineteenth-century international law, at a most remarkable distance from any concern for international market governance (Chapters 11–12).
While he cannot help but admire the scholarship and long-term perspectives offered by The Uttermost Parts of the Earth, this reviewer has a number of criticisms. For instance, the social and political violence implied by the break-up of old communal rights on land and the move to private property is entirely ignored here. The six lines on the English enclosures (p. 703) merely underline the limits of the endeavor to “think about the law in the context of power” (p. 8). Then, Koskenniemi regularly refers to the Law Merchant, but he does not scratch much beyond the surface; the long debate about its origins in medieval and early-modern European cities, particularly in Italy and Flanders, is essentially ignored. So also is the role of elected commercial courts, which underpinned cross-European trade for centuries, or the medieval Champagne Fairs, with their extra-territorial jurisdiction. This bias reinforces the very élite-driven, top-down aspect of this book, with its strong focus on the writings and decisions of key authors, great statesmen, and grand judges. Legal agency, legal imagination, and experimentation are not seen at work in civil societies, not to mention the communities of outcasts. Similarly, issues of legal pluralism are not much present and are curiously associated with that most ambiguous notion: “feudalism.”
Lastly, while Koskenniemi’s history writing is certainly not teleological, he clearly envisages England’s experience as the only constructive route towards a modern, law-based market order, backed up by a progressive settlement between private property and sovereignty. There is no question, of course, that England’s avoidance of the “absolutist moment” set it apart from the rest of Europe and gave it massive, long-term comparative advantages, both economic and political. At the same time, absolutism was also a modernization project that did not blindly ignore the benefits of economic and commercial expansion, as Koskenniemi repeatedly suggests. The Law Merchant, again, was written early on into French law as the Ordonnance sur le Commerce (1673). This light-weight code unified market rules across the country along fully impersonal, actually modern, non-interventionist lines, at a time when the rest of the domestic legal landscape remained thoroughly fragmented. There are good reasons to assume that the economy benefited significantly from lower transaction costs.
Second-best routes to economic modernization remind us how effective legal imagination can be, even in a political and fiscal environment that remains essentially averse to change. This observation would be made again in dozens of cases over the following centuries, in the West and beyond.
