How Is Progress Constructed in International Legal Scholarship

In contrast to this « legal » current of theorizing the normative meaning of critical histories for international law, there is also an increasing emphasis on less legalistic « uses and abuses »10 of historiography. In particular, scholars who identify with Foucault`s genealogy tradition have emphasized the emancipatory potential of historical explanations. Although there has been an increase in critical histories of international law in recent years, their normative importance remains under-theorized, particularly from the perspective of readers in general rather than from the perspective of the authors of these narratives. How do critical histories of international law acquire their normative significance? And how should we react? We distinguish three ways in which critical histories can have normative meaning: (i) by undermining overt or hidden concepts of history embedded in contemporary practices to support their authority; (ii) disappointing normative expectations that govern people`s reactions to critical narratives; and (iii) revealing continuities and discontinuities in the functions of our practices. By giving us theoretical insight into the different ways in which history can have normative meaning and provoke different reactions, this report helps us reflect on the general normative meaning of critical histories and how the same critical history can lead us in different directions. Building on Anghie`s work,55 Sundhya Pahuja argued that while the process of decolonization has brought about real change – the promise of improvement through the universalization of legal doctrines such as sovereignty and self-determination – this promise has continued to be undermined by the powerful functions of practices that are supposed to serve very different purposes.56 To support this claim to functional continuity, Pahuja examines three cases in which the Third World has sought to use international law to challenge the West`s hegemonic position: the process of decolonization, the establishment of permanent sovereignty over natural resources, and the application of a post-Cold War rule of international law.57 In all three cases, the new promise of universality concealed a strong functional continuity with colonial power relations. Pahuja`s critique is usefully seen through a distinction between overt and operational concepts introduced by philosopher Sally Haslanger.58 Manifesto concepts are the explicit, public, and intuitive understanding of what we do, while operational concepts are the implicit and hidden understanding of how our practices actually work. The most important way to identify operational concepts, Haslanger argues, is through historical investigation—not out of sheer fascination with history, but because « there is often a significant gap between the dominant or institutional understanding of a domain and its actual functioning, »59 and because its actual functioning is so deeply linked to complex and historically evolving practices. that a historical perspective is necessary to fully grasp operational concepts. Thus, when Pahuja asserts that post-World War II international law has both an imperial and a counter-imperial dimension,60 she points out that it implies the promise of improvement at the manifest level only so that this promise is stifled by functional continuity at the operational level.

While the universalization of international law promised to extend to the Third World all the benefits of sovereignty previously reserved for Western states, such as stability and political independence – such as stability and political independence – the operational functionality of the international system continued to perpetuate the West`s hegemonic position. As this example also shows, this kind of normative meaning depends on the demands of our normative expectations, and one question critical story readers need to ask themselves is when those expectations are actually too high. If one thought that the prestige of the institutions that facilitate international cooperation would be definitively called into question by the recognition they have historically emerged from the pursuit of national interests, one would even recognize John Ikenberry`s observation that the liberal order since World War II has been motivated by both American and in some ways, beneficial to all. on the other hand, a more moderate attitude, according to which the prestige of any form of international cooperation is questioned only if it is exclusively or almost exclusively in the interest of a dominant actor, is much more tolerant of entanglement with national interests. The fact that people have tried in the past to use international law for their own purposes is undoubtedly worth mentioning, and especially if those goals are not ours, it may look like international cooperation. But this fact should not blind us to others, such as the benefits associated with these applications. And it is certain that our normative expectations should not be such that this fact alone leads us to conclude that the entire international order is in decline. We develop a normative sense that aims to find a balance between these two approaches. While we reject the « legal » image that identifies the normative significance of critical historiography with its immediate significance for international legal arguments, we also reject the Foucauldian image of genealogical histories as pure problematization that only highlights new possibilities and does not claim clear normative outcomes. Even if a critical history only problematizes its subject, the question remains why it manages to problematize – why the revelation of contingency must be seen as a problematization of international law; For even problematizations depend on earlier assumptions (such as the belief that the current state of international law reflects some kind of teleological necessity).

A historiography that leads us to question these assumptions thus has a form of normative significance that itself requires further clarification.15 Some of these tensions could be overcome by replacing notions of history that have proven unstable to reflection with more robust histories of legitimation. Just as Bernard Williams seeks to replace the smug progressive narrative that liberalism tells about itself with a more stable narrative under critical historical reflection, international jurists may seek to replace the utopian narratives on which parts of international law still base their authority with stable and thoughtful accounts of the various successes and failures of international law. Of course, to the extent that international law (or a particular institution or norm of international law) is designed to continually serve a particular function, the use of history to reveal functional continuities and discontinuities will have a variant of the kind of normative meaning we considered in Section III: The critique of certain conceptions of historical functions is a kind of critique of certain conceptions of historical functions. history. But the discovery of functional continuities and discontinuities can exert critical power even without such prior ideas. To understand that something serves a certain function is to understand that it systematically has certain causal effects that are important to you, either because those effects serve needs and concerns that you want to see met, or because those effects are oppressive or unjust.

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