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Acknowledgements
The present volume builds on the conference ‘Contingency in the Course of International Law: How International Law Could Have Been’, which we held in Amsterdam in the summer of 2018 under the auspices of the Amsterdam Center for International Law (ACIL). It was a sparkling event exceeding our expectations in substance and form; in the depth of the exchange; in open curiosity and intellectual rigour; and in sheer interest and numbers.
We invited a few colleagues to the conference but wanted to seek out unfamiliar voices. About 140 scholars replied to our Call for Papers, and 60 presenters filled the conference. Fleur Johns opened the proceedings and Sam Moyn closed them. Both gave memorable keynote lectures that now, in revised versions, frame the present volume. We are truly grateful to all of the presenters and conference-participants for their engaged contributions and spirited exchanges, and to the contributors to the volume for their continued commitment, ongoing debate, and regular input.
Neither this volume nor the conference would have been possible without the financial and logistical support we received from ACIL and the Amsterdam Law School. Several colleagues were of particular assistance in bringing the conference to fruition, including ACIL’s administrative assistants Yvonne ter Horst and Kaan Özdurak, as well as the helping hands of Teresa Cabrita, Corina Heri, Jackson Oldfield, and Wim Zimmermann. Kathryn Skinner was a superb student assistant during that time.
The volume would not have obtained its present shape had it not been for Bianca Dillon’s outstanding support in finalising it. She closely read and edited every chapter with exceptional diligence and dedication. We are further grateful to Brittany Feldman, who took over from Kathryn as a student assistant to work on the volume.
We wish to thank Merel Alstein from OUP, who attended the conference in 2018, for her kind support for the project from its beginning. And we are grateful to Jack McNichol for steering the volume towards production.
With deep gratitude to our interlocutors and all who have helped.
Ingo Venzke and Kevin Jon Heller Amsterdam and Copenhagen, October 2020
List of Contributors xiii
List of Abbreviations xv
I.
INTRODUCTION
1. Situating Contingency in the Path of International Law 3 Ingo Venzke
II. THEORISING
& NARRATING
CONTINGENCY
A. ENACTED STRUCTURES & STRUCTURED ACTORS
2. On Dead Circuits and Non-events 25 Fleur Johns
3. Contingency in International Legal History: Why Now? 44
Genevieve Renard Painter
4. The Necessity of Contingency: Method and Marxism in International Law 60 Umut Özsu
5. The Realist and the Visionary: Property, Sovereignty, and the Problem of Social Change 77 Justin Desautels-Stein
6. An Enlarged Sense of Possibility for International Law: Seeking Change by Doing History 92 Janne E Nijman
B. SITUATED PERSPECTIVES & POSSIBILITIES
7. Contingencies in International Legal Histories: Origins and Observers 111 Filipe dos Reis
8. Historical Base and Legal Superstructure: Reading Contingency and Necessity in the Tadić Challenge 129 Michele Tedeschini
9. Subverting Eurocentric Epistemology: The Value of Nonsense When Designing Counterfactuals 145 Mohsen al Attar
10. The Time of Contingency in International Law 162
Geoff Gordon
III. LOCATING & RESISTING CONTINGENCY
A. MIGRANTS & REFUGEES
11. The Contingency of International Migration Law: ‘Freedom of Movement’, Race, and Imperial Legacies 179 Frédéric Mégret
12. Contingent Movements? The Differential Decolonisations of International Refugee and Migration Law and Governance 199 Christopher Szabla
B. SEA & RESOURCES
13. What If the United Nations Convention on the Law of the Sea had Entered into Force Unamended: Business as Usual or Dystopia?
Alex Oude Elferink
215
14. What If Arvid Pardo Had Not Made his Famous Speech? (False) Contingency in the Making of the Law of the Sea 231 Surabhi Ranganathan
15. Contingent Economic Legal Ordering: Permanent Sovereignty over Natural Resources and International Commodity Agreements 246 Lucas Lixinski and Mats Ingulstad
C. HUMAN RIGHTS
16. Rights for Daydreaming: International Human Rights Law Thought Otherwise 267 Kathryn McNeilly
17. Who Turned Multinational Corporations into Bearers of Human Rights? On the Creation of Corporate ‘Human’ Rights in International Law 281 Silvia Steininger and Jochen von Bernstorff
18. Contesting Austerity in the 1970s and 1980s: When Human Rights Went Missing 297 Matthias Goldmann
D. ARMED CONFLICT
19. Contingencies of Context: Legacies of the Algerian Revolution in the 1977 Additional Protocols to the Geneva Conventions 319 Emma Stone Mackinnon
20. Unveiling Common Article 3 to the Geneva Conventions: Contingency, Necessity, and Possibility in International Humanitarian Law 338
Bianca Maganza
21. Narrative Contingency and International Humanitarian Law: Crimes against Humanity in Cixin Liu’s Post-Humanist Universe 351
Amanda Alexander
22. Why Did Starvation Not Become the Paradigmatic War Crime in International Law?
Nicholas Mulder and Boyd van Dijk
E. FOREIGN INVESTMENTS
23. The Law of State Responsibility and the Persistence of Investment Protection
Kathryn Greenman
24. Barcelona Traction Re-Imagined: The ICJ as a World Court for Foreign Investment Cases? 406
Saïda El Boudouhi
25. From a Fortuitous Transplant to a Fundamental Principle of Law? The Doctrine of Legitimate Expectations and the Possibilities of a Different Law 426
Josef Ostřanský F. THE NEW INTERNATIONAL ECONOMIC ORDER
26. Bandung’s Fate
Kevin Crow
27. ‘Poisonous Flowers on the Dust-heap of a Dying Capitalism’: The United Nations Code of Conduct on Transnational Corporations, Contingency and Failure in International Law
Michelle Staggs Kelsall
G. ERUPTIONS
28. Contravention and Creation of Law during the French Revolution 481
Edward Kolla
29. Contingencies in the Rise of European and Latin American Private International Law, 1850 to 1950
Ana Delic
IV. OUTLOOK
30. From Situated Freedom to Plausible Worlds
Samuel Moyn
List of Contributors
Mohsen al Attar, Dean of the Faculty of Law, University of the West Indies; Associate Professor, University of Warwick
Amanda Alexander, Lecturer, Australian Catholic University
Jochen von Bernstorff, Professor, University of Tübingen
Kevin Crow, Assistant Professor of International Law and Ethics, Asia School of Business; International Faculty Fellow, MIT
Ana Delic, PhD Researcher, Tilburg University
Justin Desautels-Stein, Associate Professor, University of Colorado
Filipe dos Reis, Assistant Professor, University of Groningen
Saïda El Boudouhi, Professor of Law, Université Polytechnique Hauts-de-France (Valenciennes)
Matthias Goldmann, Junior Professor, Goethe University Frankfurt; Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law
Geoff Gordon, Senior Researcher, T.M.C. Asser Instituut
Kathryn Greenman, Lecturer, University of Technology Sydney
Kevin Jon Heller, Professor of International Law and Security, Centre for Military Studies, University of Copenhagen; Professor of Law, Australian National University
Mats Ingulstad, Researcher, Norwegian University of Science and Technology
Fleur Johns, Professor, University of New South Wales
Michelle Staggs Kelsall, Lecturer, SOAS University of London
Edward Kolla, Associate Professor, Georgetown University
Lucas Lixinski, Associate Professor, University of New South Wales
Emma Stone Mackinnon, Lecturer, University of Cambridge
Bianca Maganza, PhD Candidate, Graduate Institute of International Development Studies (Geneva)
Kathryn McNeilly, Senior Lecturer, Queen’s University Belfast
Frédéric Mégret, Professor, McGill University
Samuel Moyn, Professor, Yale University
Nicholas Mulder, Assistant Professor of Modern European History, Cornell University
Janne E Nijman, Professor, University of Amsterdam and the Graduate Institute of International Development Studies (Geneva); Academic Director, T.M.C. Asser Instituut
Josef Ostřanský, Visiting Fellow, Australian National University; Associate Researcher, Geneva Center for International Dispute Settlement
Alex Oude Elferink, Netherlands Institute for the Law of the Sea (NILOS); Utrecht Centre for Oceans, Water and Sustainability Law, Utrecht University
Umut Özsu, Associate Professor, Carleton University
Genevieve Renard Painter, Assistant Professor, Concordia University
Surabhi Ranganathan, University Senior Lecturer, King’s College, University of Cambridge
Silvia Steininger, Research Fellow, Max Planck Institute for Comparative Public Law and International Law
Christopher Szabla, Global Academic Fellow, University of Hong Kong
Michele Tedeschini, Research Fellow, Centre for Global Cooperation Research, Universität Duisburg-Essen
Boyd van Dijk, McKenzie Fellow, University of Melbourne
Ingo Venzke, Professor, University of Amsterdam; Director, Amsterdam Center for International Law (ACIL)
List of Abbreviations
AIIL American Institute of International Law
API Additional Protocol I
APIII Additional Protocol to the Geneva Conventions
ARSIWA 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts
ASEAN Association of Southeast Asian Nations
BBNJ Biodiversity Beyond National Jurisdiction
BIPM Bureau International des Poids et Mesures
BIT Bilateral Investment Treaty
CA3 Common Article 3
CBD Convention on Biological Diversity
CILT Critical International Legal Theory
CIPEC Intergovernmental Council of Copper Exporting Countries
CLCS Commission on the Limits of the Continental Shelf
CLH Critical Legal History
CLS Critical Legal Studies
CSOP Commission to Study the Organisation of Peace
DSU Dispute Settlement Understanding
ECHR European Convention on Human Rights
ECOSOC United Nations Economic and Social Council
ECT Energy Charter Treaty
ECtHR European Court of Human Rights
ESC rights Economic, Social and Cultural rights
EU European Union
FAO Food and Agriculture Organization of the United Nations
FET Fair and Equitable Treatment
FLN Front de Libération Nationale
GA United Nations General Assembly
GATT General Agreement on Tariffs and Trade
GCs Geneva Conventions of 1949
HCCH Hague Conference for Private International Law
IACtHR Inter-American Court of Human Rights
IBA International Bauxite Association
ICA International Commodity Agreement
ICCPR International Covenant on Civil and Political Rights
ICEM Intergovernmental Committee for European Migration
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ICL International Criminal Law
ICRC International Committee of the Red Cross
ICSID International Centre for Settlement of Investment Disputes
ICTY International Criminal Tribunal for the Former Yugoslavia
IDI Institut de Droit International
IFI International Financial Institution
xvi List of Abbreviations
IHL International Humanitarian Law
IIL International Investment Law
ILC International Law Commission
ILO International Labour Organization
IMA International Migration Administration
IMF International Monetary Fund
IMO International Maritime Organization
IOM International Organization for Migration
IOPC Funds International Oil Pollution Compensation Funds
IRO International Refugee Organization
ISA International Seabed Authority
ISDS Investor-State Dispute Settlement
ITLOS International Tribunal for the Law of the Sea
ITO International Trade Organization
ITU-R International Telecommunications Union—Radiocommunications
LE Legitimate Expectations
LoN League of Nations
LOSC Law of the Sea Convention
MAI Multilateral Agreement on Investment
NAFTA North American Free Trade Agreement
NGO Non-Governmental Organisation
NIAC Non-International Armed Conflict
NIEO New International Economic Order
OAS Organization of American States
OECD Organisation for Economic Co-Operation and Development
OPEC Organization of the Petroleum Exporting Countries
PSNR Permanent Sovereignty over Natural Resources
R2P Responsibility to Protect
RSR Reciprocating States Regime
SG Secretary General
SPLOS Meeting of States Parties to the Convention
TDM Transnational Dispute Settlement
TFEU Treaty on the Functioning of the European Union
TNC Transnational Corporation
TWAIL Third World Approaches to International Law
UDHR Universal Declaration of Human Rights
UN United Nations
UNCITRAL United Nations Commission on International Trade Law
UNCLOS UN Convention of the Law of the Sea
UNCLOS III Third United Nations Conference on the Law of the Sea
UNCTAD United Nations Conference on Trade and Development
UNGA UN General Assembly
UNHCR United Nations High Commission for Refugees
UNICEF United Nations International Children’s Fund
UNRRA United Nations Relief and Rehabilitation Agency
US United States
UTC Universal Coordinated Time
VCLT Vienna Convention on the Law of Treaties
WPLC World Peace through Law Conference
WTO World Trade Organization
I INTRODUCTION
1
Situating Contingency in the Path of International Law
Ingo Venzke*
I. Introduction
The present volume asks a question that is deceptive in its simplicity: Could international law have been otherwise? In other words, what are past possibilities, if any, for a different law? The path of law was long understood as expressing a natural plan, given fate or divine fiat. The mark of enlightened modernity was then to no longer see the world, and the law in it, as so predetermined that contingency was just puzzling.1 The ramifications of this move were tremendous across theory and practice. The individual became the focal point of legitimate order and the master of a now disenchanted, freer world. Ridden with contradictions, enlightened modernity evoked anxieties about how to bear the weight of one’s choices, if not of the whole world. The newfound freedom triggered a longing for guidance and explanation within this world of possibility, for foundations that were now evasive.2 Still, today there is hardly a serious account left that would consider the path of international law to be necessary and that would refute the possibility of a different law altogether.
If that is so, then thinking through how international law could have been otherwise should not be too hard, neither in theory nor in practice. In our original conference pitch, Kevin Jon Heller and I claimed that ‘international law’s past . . . is ripe with possibilities that have been forgotten’. We wanted to reveal and remember them. We did not, however, want to engage in stories of miracle counterfactuals, hypothetical changes that are withdrawn from worldly constraints. We set out in search of plausible possibilities that arose within given circumstances. Many chapters in the volume now meet precisely that ambition, retrieving contingency from the margins of collective memory.
For none of the contributions has this been an easy task, nor should it have been. Behind every possibility of the past stands a reason why the law developed as it did after all.3 The search for contingency appeals to opposing critical sensibilities of wanting to show possibilities of the past and wanting to reveal the determining forces that compel the law down
* Email: i.venzke@uva.nl. I am truly grateful to all the participants of the conference ‘Contingency in the Course of International Law: How International Law Could Have Been’, University of Amsterdam, 14–16 June 2018 for the spirited discussions and all their input.
1 Niklas Luhmann, Kontingenz und Recht (Suhrkamp 2013) 36; Nicholas Onuf, ‘“Tainted by Contingency” Retelling the Story of International Law’ in Nicholas Onuf (ed), International Legal Theory: Essays and Engagements 1966–2006 (Routledge 2002) 359, 374.
2 See Theodor W Adorno and Max Horkheimer, Dialectic of Enlightenment (John Cumming tr, Verso 1997).
3 Compare Tedeschini, in the present volume, noting that ‘[t]he more we look for it, the more contingency slips away’.
one path rather than another.4 Many chapters encounter tensions when they want to recover past possibilities without downplaying patterns of determination and domination. While those warring critical sensibilities may point in different directions, both are crucial to keeping inquiries on the terrain of contingency, situated precisely between necessity on one side and chance on the other. Only with a keen sense of why things turned out the way they did is it possible to argue about how they could plausibly have turned out differently.
The present search for contingency in international law, as I see it, is motivated in the first instance by a refusal to resign to the present state of affairs, to accept ‘all . . senseless wretchedness [as] an unchangeable force of nature, a fate beyond man’s control’, as Max Horkheimer put.5 In the second instance, it is motivated by the hope that recovering possibilities of the past facilitates change in the present for a different future.6 Situating contingency in the course of international law counters dynamics that depict law’s course as next to necessary. Those dynamics rationalise in hindsight and preach with foresight. They understand the past not out of its own possibilities but as a prequel to the present, and the present in light of the future to come. When they flatten law’s history and iron out contingencies, the law appears to be next to necessary and progressive change is deemed undesirable and impossible anyway.
‘If there is a sense of reality, there must also be a sense of possibility’,7 Musil claimed in an early chapter of The Man Without Qualities. He immediately continued to write of delicate fools who are so overwhelmed by such a sense of possibility that they daydream with their heads in the clouds—fools, he wrote, that are ‘called idealist by those who wish to praise them’.8 Those daydreamers ‘cannot comprehend reality or . . in their melancholic condition, avoid it. These are people in whom the lack of a sense of reality is a real deficiency.’9 But there are also those who keep their feet on the ground and embrace—still with Musil—a ‘conscious utopianism that does not shrink from reality but sees it as a project’.10 That may well be the core of most critical projects, including the present volume: upholding the possibility of a different law.11 Recovering contingency in the course of international law wishes to cultivate pockets of freedom that exist within and against a world presently beyond reach.
In this introduction, I will situate contingency on the terrain between necessity and chance. I will also discuss what makes the search for contingency so politically charged and so valuable—its link with human freedom. Ultimately, historical inquiry cannot do without the presumption of contingency, as I will submit in agreement with others (II). Expanding on the agenda behind the present volume as I see it, I will then sketch dynamics that portray
4 Yemima Ben-Menahem, ‘Historical Necessity and Contingency’ in Aviezer Tucker (ed), A Companion to the Philosophy of History and Historiography (Blackwell 2009) 120.
5 Max Horkheimer, ‘Traditional and Critical Theory’ in Max Horkheimer, Critical Theory: Selected Essays (Continuum 2002) 188, 204. Searching for contingency of course has a history or, better, histories within different disciplines. See in detail Painter, in this volume. While debates about critical legal histories come close, international law is at a different moment, as I have argued on another occasion, see Ingo Venzke, ‘Possibilities of the Past? The Histories of the NIEO and the Travails of Critique’ (2018) 20 Journal of the History of International Law 263.
6 See Nijman, in this volume.
7 Robert Musil, The Man Without Qualities (Sophie Wilkins tr, Vintage 1995) 10.
8 Musil (n 7) 22.
9 ibid.
10 ibid.
11 Christoph Menke, ‘Die Möglichkeit eines anderen Rechts’ (2014) 62 Deutsche Zeitschrift für Philosophie 136. In her seminal article, Susan Marks, too, sees this as ‘a cardinal principle of progressive thought’, Susan Marks, ‘False Contingency’ (2009) 62 Current Legal Problems 1, 2. She further agrees that ‘it is quite right to hammer the point that history is a social product, not given but made. For if it is made, it can be remade differently.’
the path of international law as next to necessary (III) to then specify what the practice of searching for contingency might do about those dynamics, and what other potential this practice may hold (IV). One benefit that puts thinking about contingency ahead of much normative theorising is that it also asks why something that may seem desirable has not materialised. That question must guide those on pathways of transformation in their sobering search for change (V). Closely aligned is the question of what would actually have made a difference in the path of international law, and what still can (VI). Often it seems that the law only reflects given conditions—an impression that is frequently unassailable. But there is a risk of undervaluing how the law escapes its determining context (VII). Inquiries into what happened and what else could have happened are two sides of the same coin.12 It still remains difficult to actually convey a sense of contingency, not in the least due to strictures of narrative style (VIII). In conclusion, I see sites of contingency in the law’s contextualisation, the reading of its context, and the rendering of its history (IX).
II. Contingency situated
Searching for contingency in the path of international law probes what else could plausibly have happened. Whatever actually happened, while possible, did not become necessary only because it happened.13 What is might also not be. Likewise, something is not impossible only because it did not happen. Contingency delineates the field of what is possible, bounded by necessity, on one side, and chance on the other.
Occasionally, some authors elide contingency’s distinction from chance. Such an elision is more common and easier in the English language than in others, a point to which I shall return.14 The concept of contingency has also been the target of spats between those who defend spheres of freedom to act differently and others who decry the emphasis on seemingly free-floating actors.15 I briefly revisit those well-known debates because they clarify what is at stake. The stand-off between Isaiah Berlin and EH Carr remains classic and demonstrative.16 Their arguments about whether and how to locate contingency in the path of history extend to the reasons and responsibilities for pretty much everything that is right and wrong in the world. These debates also attest to the manner in which the conceptual contours of contingency are shaped and sometimes blurred under the impact of political leanings.
Berlin’s Historical Inevitability one of his Four Essays on Liberty— argues persuasively in favour of historians’ focus on contingency. For him, historical judgement ‘consists precisely in the placing of what occurred (or might occur) in the context of what could have happened (or could happen) and in the demarcation of this from what could not.’17 But his text is also an unpersuasive polemic against Stalinism and a caricature of Marxism, castigating them both for their supposedly ‘impersonal and unalterable’ view of history.18 Berlin
12 See Aviezer Tucker, Our Knowledge of the Past (CUP 2004) 226.
13 Luhmann (n 1) 32–33.
14 See (n 91).
15 One of the most notorious targets for that latter critique is Niall Ferguson, Virtual History: Alternatives and Counterfactuals (Basic Books 1999).
16 It is also the point of entry for Marks (n 11) and Allan Megill, ‘History’s Unresolving Tensions: Reality and Implications’ (2019) 23 Rethinking History 279.
17 Isaiah Berlin, ‘Historical Inevitability’, in Liberty (OUP 2002) 94, 121.
18 Berlin (n 17) 155.
warns loudly against the implications of such a view of history as it shifts responsibility from individuals and their action towards the forces that be, and that cannot be changed.19
EH Carr’s powerful retort—What is History?—contends that historical developments are ill understood as the product of individual choices that abstract from causal factors at work. ‘To say that the Russian revolution was due to the stupidity of Nicholas II or to the genius of Lenin is altogether inadequate’, Carr notes.20 Placing emphasis on individual agency impoverishes historical understanding and misguides assessments of why something happened. Pushing back against Berlin, Carr folds contingency into chance and conflates arguments about what was possible—plausibly so—with counterfactual speculations about what would have happened if only Cleopatra’s nose had been shorter.21
In my understanding as in that of others, contingency is not only opposed to necessity, but also to the impossible—that which was just not possible under given conditions.22 It is opposed to chance, to the random and arbitrary occurrence of events that would have been impossible were it not for some kind of sudden change of circumstances.23 Inquiring into the determining forces that bear on all action does not lead towards necessitarian views of history, nor does probing alternative possibilities slide into chance. As Susan Marks noted in her formative article, the verb ‘to determine has its roots in the Latin word terminare, meaning “to set bounds” to something’.24 Like Marks, I would see thinking of contingency to be in line with Marx’s well-received affirmation that ‘[m]en make their own history, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly encountered, given and transmitted from the past.’25 In her chapter in this volume on Arvid Pardo’s role in the development of the law of sea, Surabhi Ranganathan is careful to carve out conditions of possibility, placing particular attention to shifts in the discourse and the importance of timing. The same may be said of Ana Delic’s narration of the history of international private law through the initiatives of Pasquale Stanislao Mancini, Estanislao Zeballos as well as Tobias Asser, and for Bianca Maganza’s history of Common Article 3 to the 1949 Geneva Conventions.26
Historiography only makes sense on the presumption of contingency. Without this presumption, all that would otherwise be left to do would be to chronicle events as vindications of the laws of history (for which no plausible theory has survived) or to chronicle them while resigned to the apparent incapacity to learn anything about them.27 Stronger still, if contingency was not presumed, Samuel Moyn argues in the present volume with the support of Roberto Unger, ‘action risks paralysis through the belief that the forces of history are all controlling, a self-fulfilling prophecy that feeds much demobilisation and withdrawal past and present.’28 And yet, debates similar to those of Berlin and Carr continue to pervade historical inquiries generally, and (international) legal history in particular.29 Those
19 ibid 121–22. Also see the reading by Marks (n 11) 4.
20 EH Carr, What is History? (Penguin 1982) 120.
21 ibid 98–100; also see at 105, where Carr speaks of ‘devotees of chance and contingency in history’.
22 Luhmann (n 1) 32–33.
23 In agreement, Marks (n 11) 2 writing that ‘things can be, and quite frequently are, contingent without being random, accidental, or arbitrary’.
24 Marks (n 11) 7.
25 Karl Marx, The Eighteenth Brumaire of Louis Bonaparte (Progress Publishers 1934) 10.
26 Ranganathan, Delic, and Maganza, all in this volume.
27 Megill (n 16) 284. For the chronicler’s view of history, see Walter Benjamin, ‘Über den Begriff der Geschichte’ (1940) in Walter Benjamin, Gesammelte Schriften (Suhrkamp 1974) vol 1, 694.
28 Moyn, in this volume.
29 Painter, in this volume.
debates are also gendered, economically stratified, and they reflect complex colonial histories, adding further reason to tread carefully.30
A key question when putting the search for contingency into practice is deciding exactly when to stop looking for the next underlying reason: that is, late enough so as to not exaggerate possibilities that did not exist, and early enough to not reduce all actions to a necessary expression of their context.31 This is nothing other than the domain of historiography. Historiography does not stop asking why something happened until it is adequately explained, nor does it deny the possibilities of something different happening. For Reinhart Koselleck inquiries into historical causation are thus anthropologically centred:
The historical facts of the past, as well as those of the future, are possibilities that either have been or can be realized and which preclude compelling necessity. Facts remain contingent, however much they can be grounded; they arise in the space of human freedom.32
Such a conception of contingency is, as Umut Özsu writes in his chapter, well at home in a Marxist tradition where it takes that place between necessity and impossibility. Something that is contingent must first of all be possible.33 It is not a requirement, however, that an outcome was willed by any actor, as Edward James Kolla makes clear in his history of national self-determination after the French Revolution.34
III. Rationalising with hindsight
Later in his book, Musil paraphrases a professor at a quotidian social gathering thus:
He spoke of the path of history. When we look ahead, he said, we see an impenetrable wall. If we look left and right, we see an overwhelming mass of important events without recognizable direction. But looking back, everything, as if by a miracle, has become order and purpose.35
The professor’s intervention reflects the experience of uncertainty with regard to most things that will happen in the future, however near, and the simultaneous certainty with
30 Beliefs in the possibility of different action—and possibilities of a different law—are spread much more widely among male elites. See respectively for the emphasis on gender and strata Hilary Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65 Modern Law Review 377; Marks (n 11) 14, noting that ‘to those at the less comfortable end of social relations . . the patterning of privilege and deprivation will be quite plain’. cf Antony SR Manstead, ‘The Psychology of Social Class: How Socioeconomic Status Impacts Thought, Feelings, and Behaviour’ (2018) 57 British Journal of Social Psychology 267.
31 cf Martti Koskenniemi, ‘Histories of International Law: Significance and Problems for a Critical View’ (2013) 27 Temple International and Comparative Law Journal 215.
32 Reinhart Koselleck, Futures Past: On the Semantics of Historical Time (Columbia University Press 2004) 127. cf Carr (n 20) at 95, who makes the analogy between historical determination and causes of a crime: ‘It would not, I feel sure, occur to any of those engaged in investigating the causes of crime to suppose that this committed them to a denial of the moral responsibility of the criminal.’ It should be noted that different disciplines have good reasons to set up contingency differently. Also see HLA Hart and Tony Honoré, Causation in the Law (2nd edn, Clarendon 1985).
33 Özsu, in this volume, making that argument with particular reference to Marx’s account of the struggle over the hours of the working day—the outcome was contingent, within bounds.
34 Kolla, in this volume.
35 Musil (n 7) 182.
which the past tends to be explained.36 There is a deeply human longing for reasons in a world that is contingent.37 As Hannah Arendt noted, people find reasons ‘in order to get rid of contingency and unexpectedness’.38
Granted, we really are smarter after the fact, but much less so than we think. The bias of hindsight and the rush to explain what has happened cloud ex post judgments and exaggerate assessments of likelihood. Baruch Fischhoff placed his pioneering work on hindsight bias squarely within discussions about historical methodology, subscribing to the view espoused by the historian Georges Florovsky:
[t]he tendency toward determinism is somehow implied in the method of retrospection itself. In retrospect, we seem to perceive the logic of the events which unfold themselves in a regular or linear fashion according to a recognizable pattern with an alleged inner necessity. So that we get the impression that it really could not have happened otherwise.39
Fischhoff drew attention to psychological dynamics working towards what he called ‘creeping determinism’.40 In a similar fashion, Richard Evans more recently warned that, in the end, historians ‘pile up causes until events are overdetermined, that is, they have so many causes that if one did not operate, the others would and the event in question would still have occurred’.41
In the specific domain of law, while certain dynamics sustain the appearance of necessity, other opportunities may arise to challenge that appearance.42 Roberto Unger has famously blamed ‘rationalizing legal analysis’ as a mode of argument that creates ‘false necessities’.43 That mode of analysis continues to pervade many accounts of legal developments, especially those developments of the law that are carried along in the practice of adjudication. Similarly, many accounts are outright functionalist as though legal developments were a necessary response to societal changes—as if economic globalisation itself fatefully determined international investment law, for instance. Some functional explanations, especially those relating to an analysis of underlying political economies, can claim considerable plausibility, but they also efface alternative possibilities, including those alternatives that might have opened up through different understandings of the ‘given’ circumstances and the challenges they present. Facts do not speak for themselves.44
36 Richard Ned Lebow, Forbidden Fruit: Counterfactuals and International Relations (Princeton University Press 2010).
37 See already Adorno and Horkheimer (n 2).
38 Hannah Arendt, interviewed by Roger Errera in October 1978, excerpts published in The New York Review of Books (New York, 26 October 1978) 18.
39 Georges Florovsky, ‘The Study of the Past’ quoted in Baruch Fischhoff, ‘Hindsight ≠ Foresight: The Effect of Outcome Knowledge on Judgment Under Uncertainty’ (1975) 1 Journal of Experimental Psychology: Human Perception and Performance 288, 288.
40 Fischhoff (n 39) 288.
41 Richard J Evans, Altered Pasts: Counterfactuals in History (Little, Brown 2014) 82.
42 See Ingo Venzke, ‘Cracking the Frame? On the Prospects of Change in a World of Struggle’ (2016) 27 European Journal of International Law 831.
43 Roberto Mangabeira Unger, What Should Legal Analysis Become? (Verso 1996) 36; Roberto Mangabeira Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy (Verso 2001); cf Duncan Kennedy, A Critique of Adjudication (Harvard University Press 1997) 18.
44 Section VII in this chapter.
Moreover, other views on the course of international law see it as bending towards a singular, just future.45 In legal practice, finally, the past is used instrumentally and unabashedly to support claims in the present.46 The operation of the law thrives on hindsight. In contradistinction, the search for contingency heads in the very opposite direction, trying to unsettle certainty about law’s path and to make it more malleable. In the following two sections I will first deal with beliefs in the changeability of the law (IV) and then discuss how change might occur—and what the practice of situating contingency in the path of international law might engender in this regard (V).
IV. Reality as a project
I have suggested that upholding the belief in the possibility of a different law may well be the core of most critical projects, not to shrink from reality, but to take reality itself as a project, as Musil put it.47 What might sustain such a belief, and why is it important? First and foremost, the hope that the law, and the world at large, might in principle be different is foundational to understandings of agency. Even those critiques of international law that portray it as a relentless tool of imperialism tend to be followed by cries for reform, as Mohsen al Attar points out in his chapter.48 If nothing can change, why bother? There needs to be some hope in the changeability of conditions as a precondition for self-determined action, as Theodor W Adorno noted.49 Such a hope does not need to be grounded in certainty, nor should it wane into wishful thinking.50 In her history of human rights in the present volume, Kathryn McNeilly approaches hope that way, as a ‘latent force with politically transformative potential in the context of restrictive power relations’.51 Even those who keep their feet firmly on the ground must realise that whatever is (im)possible also depends on dreams and aspirations, as McNeilly also suggests. That is the conscious, grounded hope expressed in the slightly worn slogan of the 1960s: ‘Be realistic and demand the impossible.’ One need not be an idealistic fool to acknowledge that shifting hopes for whatever should be influences what can be, and vice versa. Necessity and (im)possibility are modalities unconnected to any object, formed instead through practices, experiences, and expectations.52
While introductory lessons of political philosophy teach that something should not be only because it is, first pages of social psychology teach that assessments of what is bound to be the case (necessary) and what is desirable (just) are in fact closely aligned— whenever one changes, the other follows suit swiftly.53 Georg Jellinek wrote of the
45 For a critical appraisal see Thomas Skouteris, The Notion of Progress in International Law Discourse (Asser 2010); cf Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (CUP 2011) 117.
46 Anne Orford, ‘On International Legal Method’ (2013) 1 London Review of International Law 166; David Kennedy, ‘Primitive Legal Scholarship’ (1986) 27 Harvard International Law Journal 1.
47 See above notes 10–11 and accompanying texts.
48 Al Attar, in this volume.
49 Theodor W Adorno, Minima Moralia: Reflections from Damaged Life (EFN Jephcott tr, Verso 1974) 97–98 (s 61). See in further detail, Tilo Wesche, Adorno: Eine Einführung (Reclam 2018) 187–95.
50 Adorno (n 49).
51 McNeilly, in this volume.
52 Luhmann (n 1) 44; cf Hayden White, Metahistory: The Historical Imagination in Nineteenth-Century Europe (Johns Hopkins University Press 1973) 283.
53 Vicky M Wilkins and Jeffrey B Wenger, ‘Belief in a Just World and Attitudes Toward Affirmative Action’ (2014) 42 Policy Studies Journal 325.
