List of Contributors
Mustafa Aksakal is Associate Professor of History and Nesuhi Ertegün Chair of Modern Turkish Studies at Georgetown University, Washington, DC, where he teaches Ottoman and Middle Eastern History. He is the author of The Ottoman Road to War in 1914 (2006); ‘Holy War Made in Germany? Ottoman Origins of the 1914 Jihad’, War in History (2011); and ‘The Ottoman Empire’, in Robert Gerwarth and Erez Manela (eds), Empires at War. 1911–1923 (2014).
Mikhail Antonov is Professor of Law associated with the Law Faculty at the National Research University ‘Higher School of Economics’ (Saint Petersburg) and practising member of the Saint Petersburg Bar Association. Among his recent publications are ‘History of Russian Law and Its Interpretations’, Review of Central and East European Law (2020); ‘Religion, Sexual Minorities, and the Rule of Law in Russia’, Journal of Law, Religion and State (2019); ‘Legal Realism in Soviet and Russian Jurisprudence’, Review of Central and East European Law (2018); ‘Conservative Philosophy and Doctrine of Sovereignty: A Necessary Connection?’, Archiv für Rechts- und Sozialphilosophie (2017).
Beate Jahn is Professor of International Relations at the University of Sussex, UK. Her publications include The Cultural Construction of International Relations (2000); Classical Theory in International Relations (2006); Liberal Internationalism (2013); ‘Kant, Mill, and Illiberal Legacies in International Affairs’, International Organization (2005); ‘Theorizing the Political Relevance of IR Theory’, International Studies Quarterly (2017); and ‘Liberal Internationalism: Historical Trajectory and Current Prospects’, International Affairs (2018).
Arnulf Becker Lorca is a researcher at the Pontificia Universidad Católica de Valparaíso, Henry Steiner Visiting Professor at Harvard Law School, and a Lecturer at Brandeis University. His book Mestizo International Law: A Global Intellectual History, 1842–1933 (2015) was the winner of the 2016 Book Prize of the European Society of International Law.
Lauren Benton is Barton M. Biggs Professor of History at Yale University. Her publications include, with Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (2016); A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (2010); and Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (2002), which received the World History Association’s Bentley Book Prize and the J. Willard Hurst Book Prize of the Law and Society Association.
Lothar Brock is Senior Professor of Political Science at Goethe-University Frankfurt and at the Peace Research Institute Frankfurt. His English publications on the topic of this book include ‘The Use of Force in the Post-Cold War Era. From Collective Action back to Pre-Charter Self Defense?’, in Michael Bothe, Mary Ellen O’Connell, and Natalino Ronzitti
(eds), Redefining Sovereignty. The Use of Force After the Cold War (2005); Democratic Wars. Looking at the Dark Side of Democratic Peace (2006, co-ed. with Anna Geis and Harald Müller); and ‘Between Sovereign Judgement and the International Rule of Law’, in Anthony Lang, Jr and Mathias Albert (eds), The Politics of International Political Theory (2019).
Chris Brown is Emeritus Professor of International Relations at the LSE and the author of International Society, Global Politics (2015); Practical Judgement in International Political Theory (2010); Sovereignty, Rights and Justice (2002); International Relations Theory: New Normative Approaches (1992). He is co-editor (with Terry Nardin and N.J. Rengger) of International Relations in Political Thought (2002) and (with Robyn Eckersley) of The Oxford Handbook of International Political Theory (2018). His textbook Understanding International Relations (2019) is now in its fifth edition.
Manjiao Chi is Professor and Founding Director at the Center for International Economic Law and Policy (CIELP), Law School, University of International Business and Economics (UIBE), China. His research fields cover international law, especially international trade and investment policy and law, dispute settlement, and global governance. He is a founding editor-in-chief of Asian Yearbook of International Economic Law, and author of Integrating Sustainable Development in International Investment Law: Normative Incompatibility, System Integration and Governance Implications (2018).
B.S. Chimni is Professor of International Law at School of International Studies, Jawaharlal Nehru University. Among his publications are ‘Third World Approaches to International Law & Individual Responsibility in Internal Conflict’, 2 Chinese Journal of International Law (2003, with Antony Anghie); and International Law and World Order. A Critique of Contemporary Approaches (2nd ed., 2017).
Christopher Daase is Professor of International Organizations at Goethe-University Frankfurt and Deputy Director of the Peace Research Institute Frankfurt. Among his publications are Transformations of Security Studies. Dialogues, Diversity and Discipline (2015, with Gabi Schlag und Julian Junk); Clausewitz on Small War (2015, with James Davis); and Recognition in International Relations. Rethinking a Political Concept in a Global Context (2015, with Caroline Fehl, Anna Geis, and Georgios Kolliarakis).
Nicole Deitelhoff is Professor of International Relations and Theories of International Order at Goethe-University Frankfurt and Director of the Peace Research Institute Frankfurt. Among her publications are Internationalization and the State. Sovereignty as the External Side of Modern Statehood (with Michael Zürn), in Stephan Leibfried et al. (eds), The Oxford Handbook of Transformations of the State (2015) and ‘The Discursive Process of Legalization. Charting Islands of Persuasion in the ICC Case’, International Organization (2009).
Oliver Eberl is Lecturer in Political Theory and the History of Ideas at Leibniz University Hannover. Among his publications are ‘Kant on Race and Barbarism: Towards a more complex view on racism and anti-colonialism in Kant’, in Kantian Review (2019); ‘The Metaphysics of International Law. Kant’s “Unjust Enemy” and the Limitation of
Self-Authorization’, in Sorin Baiasu, Sami Philström, and Howard Williams (eds), Politics and Metaphysics in Kant (2011).
Anna Geis is Professor of International Security and Peace Studies at the Institute of International Politics at Helmut-Schmidt-University/University of the Federal Armed Forces in Hamburg (Germany). Among her publications are Recognition in International Relations. Rethinking a Political Concept in a Global Context (2015, with Christopher Daase, Caroline Fehl, and Georgios Kolliarakis) and The Janus Face of Liberal Democracies. Militant ‘Forces for Good’ (2013, with Harald Müller and Niklas Schörnig).
Aimee Genell is an Assistant Professor of History at the University of West Georgia. She is the author of ‘The Well-defended Domains: Eurocentric International Law and the Making of the Ottoman Office of Legal Counsel’, Journal of Ottoman and Turkish Studies (2016) and ‘Ottoman Autonomous Provinces and the Problem of “Semi-Sovereignty” in International Law’, Journal of Balkan and Near Eastern Studies (2016). She is completing her manuscript, Empire by Law: The Ottoman Origins of the Mandates System in the Middle East
Sohail H. Hashmi is Professor of International Relations on the Alumnae Foundation and Professor of Politics at Mount Holyoke College, South Hadley, Massachusetts. He is the editor of Just Wars, Holy Wars, and Jihads: Christian, Jewish, and Muslim Encounters and Exchanges (2012).
Axel Heck is Senior Lecturer in International Relations at the Institute of Political Science at the University of Kiel. He has published respectively in the European Journal of International Relations, International Studies Perspectives, and the Zeitschrift für Internationale Beziehungen.
Thomas Hippler is Professor of Modern and Contemporary History at University of Normandy in Caen. His publications include Citizens, Soldiers, and National Armies: Military Service in France and Germany, 1789–1830 (2007); Bombing the People: Giulio Douhet and the Foundations of Air-Power Strategy, 1884–1939 (2013); and Governing from the Skies: A Global History of Aerial Bombing (2017).
Isabel V. Hull is the John Stambaugh Professor of History (retired) at Cornell University. A German historian, she is the author of The Entourage of Kaiser Wilhelm II (1982); Sexuality, State and Civil Society in Germany, 1700–1815 (1996); Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (2004); and most recently, A Scrap of Paper: Breaking and Making International Law in the First World War (2014), which was awarded the certificate of merit from the American Society of International Law.
Anthony F. Lang, Jr is a Professor of International Political Theory at the University of St Andrews, where he has been since 2004. He writes on global constitutionalism, the just war tradition, and international political theory more widely. He has published the books Agency and Ethics: The Politics of Military Intervention (2002); Punishment, Justice and International Relations: Ethics and Order after the Cold War (2008); and International Political Theory: An Introduction (2014), along with eight edited volumes and numerous articles and chapters.
Felix Lange is a research fellow at the Kollegforschungsgruppe ‘The International Rule of Law—Rise or Decline?’. He published on the history of international law, inter alia, in the European Journal of International Law and the Heidelberg Journal of International Law. Among his publications on the topic of the book are ‘The Multifaceted Emergence of the Ius Cogens-Doctrine—A Multicausal Historical Account’, Leiden Journal of International Law (2018) and ‘The Dream of a Völkisch Colonial Empire—International Law and Colonial Law during the National Socialist Era’, London Review of International Law (2017).
Siddharth Mallavarapu is Professor at the Department of International Relations and Governance Studies, School of Humanities and Social Sciences at Shiv Nadar University in India. He has been featured on Theory Talks and E-International Relations. He is the author of Banning the Bomb: The Politics of Norm Creation (2007); International Relations in India: Bringing Theory Back Home (2005, with Kanti P. Bajpai); and International Relations: Perspectives for the Global South (2012, with B.S. Chimni). His most recent contribution is forthcoming in a special issue of the journal Global Constitutionalism (2020).
Thilo Marauhn is Professor of Public and International Law, Justus Liebig University Gießen, and Head of Research Group Public International Law, Peace Research Institute Frankfurt (PRIF). He serves as President of the International Humanitarian Fact-Finding Commission. Among his most recent publications is ‘The International Rule of Law in Light of Legitimacy Claims’, in Heike Krieger, Georg Nolte, and Andreas Zimmermann (eds), The International Rule of Law. Rise or Decline? (2019).
Paul Robinson is a Professor in the Graduate School of Public and International Affairs at the University of Ottawa. He has also served as an officer in both the British and the Canadian armies. His publications include The White Russian Army in Exile (2002); Just War in Comparative Perspective (2003); Ethics Education in the Military (2017, with Nigel De Lee and Don Carrick); and Russian Conservatism (2019).
Gabi Schlag is Senior Lecturer at the Eberhard Karls-University Tübingen, Germany. She is the co-editor of Transformations of Security Studies: Dialogues, Diversity and Discipline (2016) and the special issue Visualizing Violence: Aesthetics and Ethics in International Politics (Global Discourse, 2017). Results of her research on visual global politics are published in Media, War & Conflict, Critical Studies on Terrorism, and European Journal of International Relations.
Hendrik Simon is Research Associate at the Peace Research Institute Frankfurt and Lecturer at Goethe-University Frankfurt. His English publications on the topic of this volume include ‘The Myth of Liberum Ius ad Bellum. Justifying War in 19th-century Legal Theory and Political Practice’, European Journal of International Law (2018) and ‘Theorising Order in the Shadow of War. The Politics of International Legal Knowledge and the Justification of Force in Modernity’, Journal of the History of International Law, Special Issue: Politics and the Histories of International Law (2020).
Michael Stohl, Professor of Communication, Political Science and Global Studies, University of California, Santa Barbara. He is the author, co-author, editor, or co-editor of
16 books and more than 100 scholarly journal articles and book chapters. His most recent volume is Constructions of Terrorism (2017, co-edited with R. Burchill and S. Englund).
Benno Teschke is a Professor in the Department of International Relations and former Director of the Centre for Advanced International Theory (2016–2019) at the University of Sussex. He is the author of The Myth of 1648: Class, Geopolitics and the Making of Modern International Relations (2003), awarded the 2004 Isaac and Tamara Deutscher Memorial Prize. His recent publications include a debate with Gopal Balakrishnan in the New Left Review on Marxism and Carl Schmitt and ‘Carl Schmitt’s Concepts of War: A Categorical Failure’, in Jens Meierhenrich and Oliver Simons (eds.), The Oxford Handbook of Carl Schmitt (2016).
Anuschka Tischer is a Full Professor in Early Modern History at the University of Würzburg (Germany). Among her publications are books on the French Diplomacy at the Congress of Westphalia (1999), on Justifications of War in Early Modern Europe (2012), and (together with Derek Croxton) a Dictionary on the Peace of Westphalia (2002).
Miloš Vec is Professor for European Legal and Constitutional History at the University of Vienna and Permanent Fellow at the Institute for Human Sciences (IWM). Among his publications on the history of international law are The Transformation of Foreign Policy: Drawing and Managing Boundaries (2016, with Andreas Fahrmeir and Gunther Hellmann); Paradoxes of Peace in 19th Century Europe (2015, with Thomas Hippler); and ‘From the Congress of Vienna to the Paris Peace Treaties of 1919’, in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (2012).
Wolfgang Wagner is Professor of International Security at the Department of Political Science and Public Administration, Vrije Universiteit Amsterdam. Relevant publications include The Democratic Politics of Military Interventions. Political Parties, Contestation, and Decisions to Use Force Abroad (2020) and ‘War and Punitivity under Anarchy’, European Journal of International Security (2018, with Wouter Werner).
Nina Wilén is Director for the Africa Programme at the Egmont Institute for International Relations and Assistant Professor at the Department of Political Science at Lund University. Dr Wilén’s areas of expertise include peacekeeping, peacebuilding, security sector reform, and gender and the military. She has published extensively on these topics and is also the author of Justifying Interventions in Africa: (De)Stabilizing Sovereignty in Liberia, Burundi and the Congo (2012).
The Justification of War and International Order: From Past to Present
Hendrik Simon and Lothar Brock
1. A Genealogical Approach: The Justification of War and the Historical Evolution of International Order
This book departs from a simple but momentous observation: the history of war is also a history of its justification. The use of force in international relations has always been accompanied by political, scholarly, and public discourses on its appropriateness. This is to say that the justification of the use of force is tied inextricably to its contestation because there would be no need for justifying the use of force if the latter were not regarded as basically problematic. Accordingly, the justification of certain wars entails a critique of war in general. We understand the unity of the justification and the critique of the use of force both in political practice and academic theory-building as constitutive for the emergence of international order.1
Since the justification and the critique of the use of force involve normative judgement, international order rests on a paradoxical, perhaps even dialectical2 relationship between war and normativity: war challenges and drives the formation of international order as an ‘order of justification’.3 Therefore, the history of the modern international order first and foremost can be told as a genealogy of endeavours to facilitate the use of force and to hedge it. This way the book addresses the interaction between the justification of specific wars and the formation of international order as offering a frame of reference for the justification and critique of war as such.
As we pursue this issue, we proceed on the assumption that contrary to realist claims in International Law (IL), International Relations (IR), or International History, the justification of war rarely happens simply as empty ‘propaganda’.4 Throughout history even powerful actors tend to refer to the language of normativity to justify their forceful acts. By doing so, they (voluntarily or involuntarily) contribute to the emergence of
1 R. Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (1999); S.C. Neff, War and the Law of Nations: A General History (2005); O’Connell, ‘Peace and War’, in B. Fassbender and A. Peters (eds), The Oxford Handbook of the History of International Law (2nd ed., 2014) 272; Lesaffer, ‘Too Much History: From War as Sanction to the Sanctioning of War’, in M. Weller (ed.), The Oxford Handbook of the Use of Force in International Law (2015) 35.
2 Benjamin, ‘Critique of Violence’, reprinted in P. Demetz (ed.), Walter Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writings (1978) 277; M. Foucault, Society Must Be Defended: Lectures at the Collège de France 1975–1976, ed. by A.I. Davidson (2003); H. Joas and W. Knöbl, War in Social Thought: Hobbes to the Present (2013); J. Bartelson, War in International Thought (2018).
3 R. Forst, Normativity and Power. Analyzing Social Orders of Justification (2017).
4 W.G. Grewe, The Epochs of International Law, translated and revised by M. Byers (2000), at 531.
Hendrik Simon and Lothar Brock, The Justification of War and International Order: From Past to Present In: The Justification of War and International Order. Edited by: Lothar Brock and Hendrik Simon, Oxford University Press (2021). © the many contributors. DOI: 10.1093/oso/9780198865308.003.0001
‘communication communities’ (Kommunikationsgemeinschaften).5 These communication communities are based on and shape a common understanding of what war in general is about and when it is justified. Since the early modern period such communities constitute an increasingly informed audience towards which justifications of the use of force are directed.6 The resulting public sphere has been and continues to be a major focus of dealing with the use of force. While the structure of the public sphere was transformed (from dynastic to inter-national discourse) and the technique of its representation changed (from written to printed war manifestos to mass media), the general discursive principles of justifying war remained the same. Thus, discourses on the use of force construct ‘international order’ as a normative frame of reference for politics and theory alike.7 As such a frame of reference, international order is to be understood as a ‘normative order’, in which norms function as an instrument of politics (including the politics of theory-building) and at the same time structure the practice of justifying and practising the use of force.8
Our fundamental thesis is that in their justifications of war, states and other political actors refer to (existing or presumed) norms of the international order to depict their own violence as legitimate, that is ‘appropriate behaviour’.9 According to this practice, a state’s effort to justify violence is to be interpreted as an expression of this state’s awareness of the fact that the use of force may damage not only its war opponent, but also his own standing in the normative order constituting the existing communication community.10 With this, the discourse of justifying war interacts with the international order. As norms of the international order shape the justification practices of states, the practice of justification in specific cases shapes the general normative order. Accordingly, we claim that the communicative practices of justifying war and international order- building are to be understood as co-constitutive.
This discursive co-constitutionalization of the justification of war and international order is of course not to be understood as static. We can only understand it
5 A. Tischer, Offizielle Kriegsbegründungen in der Frühen Neuzeit. Herrscherkommunikation in Europa zwischen Souveränität und korporativem Selbstverständnis (2012), at 22, 220 f.; see also the contribution by Anuschka Tischer in this volume. For the concept of ‘Kommunikationsgemeinschaften’ from a philosophical perspective of discourse ethics see K.-O. Apel, Transformation der Philosophie—Band II: Das Apriori der Kommunikationsgemeinschaft (1999).
6 See also Tischer in this volume.
7 H. Bull, The Anarchical Society. A Study of Order in World Politics (2nd ed., 1995), at 180–83; Neff, above note 1; C. Peevers, The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law (2013); Brock and Simon, ‘Die Selbstbehauptung und Selbstgefährdung des Friedens als Herrschaft des Rechts. Eine endlose Karussellfahrt? (The Self-Assertion and Self-Destruction of Peace as Rule of Law. Riding a Merry-Go-Round?)’, 59 Politische Vierteljahresschrift (2018) 269 ; H. Simon, Der Mythos vom ‘freien Recht zum Krieg’. Zu einer Genealogie der modernen Kriegslegitimation (forthcoming).
8 R. Forst and K. Günther (eds), Die Herausbildung normativer Ordnungen: Interdisziplinäre Perspektiven (2011); see also Forst, above note 3.
9 Finnemore and Sikkink, ‘International Norm Dynamics and Political Change’, 52 International Organization (1998) 887, at 891; Jepperson, Wendt, and Katzenstein, ‘Norms, Identity, and Culture in National Security’, in P.J. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics (1995), at 54.
10 On norms in International Relations, see ibid , and F. Kratochwil, Rules, Norms and Decisions, On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Society (1991); Wendt, ‘Anarchy Is What States Make of It: The Social Construction of Power Politics’, 46 International Organization (1992) 391; Checkel, ‘The Constructive Turn in International Relations Theory’, 50 World Politics 2 (1998) 324; A. Wiener, The Invisible Constitution of Politics. Contested Norms and International Encounters (2008).
scientifically in its historical context. Due to the ambiguity of norms as political instruments and determining factors structuring political discourse, international order is always contested and thus changes over time. The conceptualization of this change depends on the basic theoretical or ideological preferences of the observer. From a realist point of view, the change of international orders understood as orders of the justification of the use of force can be expected to be confined to the form of international politics while its substance as politics under anarchy persists.11 From a rationalistinstitutionalist viewpoint, normative change responds to the necessities of reducing transaction costs in a world of ever-increasing complexity.12
Critical scholars rather emphasize the ideological bias accompanying both these approaches. While the materialists within their ranks may address normative change as an issue of re-arranging the political economy of international relations (see Benno Teschke in this volume),13 those building on basic ideas of the European Enlightenment on the one hand,14 its postmodern and postcolonial critics on the other,15 would rather look for the emergence of an international rule of law as an international order16 reducing but also reproducing the arbitrary use of force. Under this third perspective, international law functions as a ‘gentle civilizer of nations’,17 and at
11 C. von Clausewitz, On War (1832, reprinted 1976), at 605; Lueder, ‘Krieg und Kriegsrecht im Allgemeinen’, in F. von Holtzendorff (ed.), Handbuch des Völkerrechts (1889) 169; Schmitt, ‘The Turn to the Discriminating Concept of War’ (1938), in C. Schmitt, Writings on War, trans. by T. Nunan (2011), 30; Morgenthau, ‘Positivism, Functionalism, and International Law’, 34 American Journal of International Law (1940) 260; K.N. Waltz, Theory of International Politics (1979); W.G. Grewe, Friede Durch Recht? (1985); see also Jütersonke, ‘Realist Approaches to International Law’, in A. Orford and F. Hoffmann (eds), The Oxford Handbook of the Theory of International Law (2016) 327.
12 R.O. Keohane, Complexity (1980); Ikenberry, ‘The End of Liberal International Order?’, 94 International Affairs (2018) 7.
13 R.W. Cox with T.J. Sinclair, Approaches to World Order (1999); Knox, ‘Marxist Approaches to International Law’, in Orford and Hoffmann, above note 11, 306; B.S. Chimni, International Law and World Order. A Critique of Contemporary Approaches (2nd ed., 2017), at 440; see also the contributions by Mallavarapu, Teschke, and Chimni in this volume.
14 I. Kant, Project for a Perpetual Peace: A Philosophical Essay (1795, reprinted 1891), at 99; H. Wehberg, Die Aechtung des Krieges. Eine Vorlesung an der Haager Völkerrechtsakademie und am ‘Institut Universitaire de Hautes Etudes Internationales’(Genf) (1930); H. Kelsen, Peace through Law (1944); Habermas, ‘Kant’s Idea of Perpetual Peace, with the Benefit of Two Hundred Years’ Hindsight’, in J. Bohman and M. LutzBachmann (eds), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (1997) 113; H. Williams, Kant and the End of War: A Critique of Just War Theory (2012); see also the contribution by Oliver Eberl in this volume.
15 Benjamin, above note 2; Foucault, above note 2; Derrida, ‘Force de loi: Le “fondement mystique de l’autorité”/Force of Law: The “Mytical Foundation of Authority” ’, 11 Cardozo Law Review (1990) 919; G. Agamben, Homo Sacer: Sovereign Power and Bare Life (1998); A. Anghie, Imperialism, Sovereignty and the Making of International Law (2004); Pahuja, ‘The Postcoloniality of International Law’, 46 Harvard International Law Journal (2006) 459; C. Menke, Recht und Gewalt (2012); D. Loick, Juridismus. Konturen einer kritischen Theorie des Rechts (2017); see also the contributions by Mallavarapu, Becker Lorca, Benton, Chimni, Hippler, and Lange in this volume.
16 Hobbes developed the idea that the domestic state of nature could be overcome through the legalization of the relationship between the ruler and the ruled. Kant took up this idea but realized that the Hobbesian approach could not simply be projected onto the system of states. His contribution to establishing a critical tradition in international law consists in taking up the need for legalization of international relations but linking it to domestic reform and the universal rights of people. Legalization in this understanding does not result in offending all war but in approaching peace as a piecemeal process. See also Habermas, above note 14, and Eberl in this volume.
17 M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law. 1870–1960 (2002).
the same time as an instrument of power and domination.18 The question of how the enabling and the restraining functions of international law interact in changing historical contexts and how this impacts on international order is the central issue of the present volume.
As to this issue, today everything seems to be in flux. The cosmopolitan version of international order which relies on the idea of progressive (peace-enhancing) legalization has come under increasing pressure with war and violence nourishing the appetite of politicians and ordinary people (including academics) alike for reinforcing existing borders or reconstructing them in order to protect themselves against the vicissitudes of a world seemingly falling apart. But the world has always been falling apart for someone, even in ‘good times’. Whether the rule of law is in rise or decline cannot be decided at this point of time. Perhaps it does not have to be decided either.19 In any case we should be careful not to declare its premature or long-awaited death (see also the contribution by Thilo Marauhn).20 If ‘words are politics’ as Martti Koskenniemi reminds us,21 it would be all the more important to understand theorizing on adequate normative standards as practice of shaping them in specific historical contexts.
There is no better time for analysing the importance of law as a normative force than these troubled years. In terms of longue durée, reference to positive international law as a normative frame of reference for addressing the use of force has spread out particularly since the mid-nineteenth century when international humanitarian law became canonized.22 It acquired a concrete form when the age-old critique of the arbitrary use of force finally23 resulted in its formal prohibition first through the Kellogg-Briand Pact and later through the UN Charter and respective regional arrangements.24 The fact that this happened between and after two world wars and certainly did not result in the abolishment of war, makes it difficult to determine what really has changed.25
18 I. Hurd, How to Do Things with International Law (2017); Brock and Simon, above note 7; Reus-Smit, ‘The Politics of International Law’, in C. Reus-Smit (ed.), The Politics of International Law (2004) 14.
19 Brock, ‘The Use of Force by Democracies in the Post-Cold War Era. From Collective Action Back to Pre-Charter Self Defense?’, in M. Bothe, M.E. O’Connell, and N. Ronzitti (eds), Redefining Sovereignty. The Use of Force after the End of the Cold War: New Options, Lawful and Legitimate? (2005) 21; see also Krieger and Nolte, ‘The International Rule of Law—Rise or Decline? Points of Departure’, 1 KFG Working Paper Series (2016); for a legal historical perspective, see Koskenniemi, ‘Imagining the Rule of Law: Rereading the Grotian “Tradition” ’, 30 European Journal of International Law (2019) 17; see also Marauhn’s chapter and our concluding chapter.
20 Franck, ‘Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States’, 64 American Journal of International Law (1970), 809; see also Marauhn’s chapter in this volume.
21 Koskenniemi, ‘Miserable Comforters: International Relations as New Natural Law’, 15 European Journal of International Relations (2009) 395, at 395.
22 M. Abbenhuis, The Hague Conferences and International Politics. 1898–1915 (2018); M. Abbenhuis, C.E. Barber, and A.R. Higgins (eds), War, Peace and International Order? The Legacies of the Hague Conferences 1899–1907 (2017); K. von Lingen, Crimes against Humanity. Eine Ideengeschichte der Zivilisierung von Kriegsgewalt. 1864–1945 (2018).
23 For its historical roots, see the contributions by Tischer, Simon, and Hull in this volume.
24 O.A. Hathaway and S.J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017); M.M. Payk, Frieden durch Recht? Der Aufstieg des modernen Völkerrechts und der Friedensschluss nach dem Ersten Weltkrieg (2018).
25 See B.S. Chimni’s critique in his contribution on ‘Peace through Law’ (chapter 13) in this volume. See also our concluding chapter.
All heroic endeavours to reach a breakthrough towards the establishment of an international rule of law have produced fragile results. Argumentative reference to positive law is being challenged (increasingly, it seems) not only by powerpolitically inspired practitioners and academics, but also by narratives of other extra-legal normative spheres (like ethics, morality, honour in connection with religion, social custom, military necessity, technological standards etc.). Thus, war discourses may not only be seen as the sum of disputes over ‘justifying reasons’,26 but also as the sum of disputes between different narratives and traditions of justification.27 The simultaneity of different normative frameworks of reference may be summarized as ‘multi-normativity’—a descriptive concept which helps to underline the complexity of the justification of war.28 The crucial question is how these different normative spheres relate to each other. They may partly match, partly coexist, and partly collide.
Ideally, the existence of multiple normativities would provide more flexibility in dealing with war and conflict. But this is not necessarily the case in practice as the debate on ‘humanitarian intervention’ has shown (see also the contribution by Chimni in Part VII). For instance, instead of bridging the gap between the commitments of the international community to protect people from mass atrocities (R2P) on the one hand, the limited ability of the UN Security Council to act on the other, reference to the just-war tradition may provide a shortcut to action but opens up new arenas of conflict as it pits morality against procedural rules of the UN Charter. Likewise, efforts to redefine sovereignty in order to provide a new legal basis for the international protection of people from mass atrocities may result in a deepening rift between considerations of legality and legitimacy of the use of force thus impeding any progress towards hedging the arbitrary use of force.29
So would it be helpful, as Chris Brown suggests in his contribution, to return to the just-war tradition all together and be done with the analytical focus on an international rule of law? Or should we stick to the latter in order to be able to navigate the tension between the legality and the morality of the use of force?30 We leave this question open at this point but will return to it in our conclusions to the present volume.
26 Forst and Günther, above note 8, at 11; Forst, above note 3.
27 The resulting complexity is addressed by von Bernstorff, ‘The Use of Force in International Law before World War I. On Imperial Ordering and the Ontology of the Nation-State’, 29 European Journal of International Law (2018) 233, at 260; see also D. Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (2005).
28 Vec, ‘Multinormativität in der Rechtsgeschichte’, in Berlin-Brandenburgische Akademie der Wissenschaften (vormals Preußische Akademie der Wissenschaften) (ed.), Jahrbuch 2008 (2009) 155, at 162–65; M. Stolleis, Geschichte des öffentlichen Rechts in Deutschland. Staats—und Verwaltungsrechtswissenschaft in West und Ost 1945–1990 (2017), at 684, 696; Duve, ‘Was ist Multinormativität?—Einführende Bemerkungen’, 25 Rechtsgeschichte—Legal History Rg (2017) 88; see also the contribution by Miloš Vec to this volume.
29 Brock, ‘The Politics of International Law. On the Transformation of Violence into Governance’, ISA Working Paper (2005), online: <www.peacepalacelibrary.nl/ebooks/files/37552505X.pdf> (last visited 10 January 2020); Bothe et al., above note 19; see also our concluding chapter in this book.
30 See also Habermas, ‘Bestiality and Humanity: A War on the Border between Legality and Morality’, 6 Constellations (1999) 263.
2. ‘Mind the Gap!’—Navigating between Theoretical and Practical Discourses on the Legitimacy of War and International Order
The preceding observations call attention to the fact that we have an insufficient understanding of the role of international norms in past and present discourses on war justifications. From our point of view, this has something to do with the fact that, in comparison to dogmatic history, there is a lack of historical studies which examine the political practice of the justification of war and which address the linkages between justifying war and modelling international order. For instance, there are countless monographs, anthologies, and articles on the just-war tradition.31 But most of the writing concentrates on theoretical discourse.32
We posit that there is a need to confront theoretical considerations with the actual practice of justifying war. Trying to do this is not to degrade theory-driven observations to second place but rather to achieve a better understanding of how scholarly discourse and political decision-making interact and relate to each other. From early modern (European) discourses on international law,33 over the professionalization of international legal scholarship in the late nineteenth century34 to the present,35 there has been a special discursive connection between political practice and legal scholarship in the highly political field of justifying and hedging war.36 In retrospect, this relationship manifested itself in the emergence of a body of customary law.37 As the opinio iuris of a state might be hard to identify without full insights into its motives to
31 M. Farrell, Modern Just War Theory: A Guide to Research (2013).
32 Tuck, above note 1; F. Allhoff, N.G. Evans, and A. Henschke (eds), Routledge Handbook of Ethics and War. Just War Theory in the 21st Century (2013); A. Lang, Jr., C. O’Driscoll, and J. Williams (eds), Just War: Authority, Tradition, and Practice (2013); S. Lazar and H. Frowe (eds), The Oxford Handbook of Ethics of War (2015); D. Brunstetter and C. O’Driscoll (eds), Just War Thinkers from Cicero to the 21st Century (2018).
33 See B. Kingsbury and B. Straumann (eds), The Roman Foundations of the Law of Nations. Alberico Gentili and the Justice of Empire (2011); S. Kadelbach, T. Kleinlein, and D. Roth-Isigkeit (eds), System, Order, and International Law. The Early History of International Legal Thought from Machiavelli to Hegel (2017); and the contributions by Tischer and Becker Lorca to this volume.
34 Koskenniemi, above note 17; L. Nuzzo and M. Vec (eds), Constructing International Law. The Birth of a Discipline (2012); Payk, above note 24; see also Simon and Vec in this volume.
35 See von Bernstorff, ‘International Legal Scholarship as a Cooling Medium in International Law and Politics’, 25 European Journal of International Law (2015) 977; Peters, ‘International Legal Scholarship Under Challenge’, in A. Nollkaemper, J. d’Aspremont, T. Gazzini, and W. Werner (eds), International Law as a Profession (2017) 117.
36 On the politicization of law(yers) in modern war discourse see Simon, ‘Theorising Order in the Shadow of War. The Politics of International Legal Knowledge and the Justification of Force in Modernity’, 22 Journal of the History of International Law (2020) 218; see also Alston, ‘The Myopia of the Handmaidens: International Law and Globalization’, 8 European Journal of International Law (1997) 435; and Peters, above note 35.
37 See also von Bernstorff, above note 27, at 240; Vec, ‘Sources in the 19th Century European Tradition. The Myth of Positivism’, in S. Besson and J. d’Aspremont (eds), Oxford Handbook on the Sources of International Law (2017) 121; on the history and theory of customary international law see Kelly, ‘Customary International Law in Historical Context. The Exercise of Power without General Acceptance’, in B.D. Lepard (ed.), Reexamining Customary International Law (2017) 47; and Chimni ‘Customary International Law: A Third World Perspective’, 112 American Journal of International Law (2018) 1; see also Hull and Vec in this volume.
go to war,38 ‘state practice’ is always in need of interpretation. Legal scholars provide such interpretation by (re-)constructing ‘practice’39 and thereby formulate norms on the legitimacy of war in conjunction with state practice. With this, lawyers (inside and outside of courts) contribute to the shaping of what is accepted by the respective political publics as international law. Historical and critical reconstruction of the respective scholarly discourses (Wissenschaftsgeschichte)40 rightly represents a core issue of the History and Theory of International Law.
However, it is analytically problematic to confine oneself to the observation of scholarly discourse.41 A rather obvious objection here is that those contemporary legal scholars, who for good reasons kept a distance to political practitioners, might have misinterpreted a state’s opinio iuris due to the lack of political insider knowledge.42 Another objection which goes into the opposite direction is that legal scholars, who made themselves available to the service of states—only think of Grotius and his commissioned works for the Dutch East India Company43 might have been partial, or they may even have played ‘an instrumental role in developing and cementing new justifications for the use of force’.44 These lawyers would not correspond to Kelsen’s ideal type of an ‘objective lawyer’,45 but rather to his real type of a mouthpiece for the powerful by presenting political interests ‘as what is objectively right’.46
What is striking on a methodological basis, is that international scholarship, while providing a set of questions and issues to be engaged with when states use force, has been for long dominated by a-historical theoretical writings.47 By analysing the work of Hugo Grotius, Michael Walzer, and Cécile Fabre from a historical perspective, Anthony Lang, Jr concludes (in his chapter to the present volume), that the just-war tradition, in order to be a truly political instead of a moral theory, must take into account the historical narratives that structure it. Much in this spirit, German historian Konrad Repgen (1923–2017) has noted already in his seminal article on Kriegslegitimationen in Alteuropa published in 1985, that historical exempla and dicta in works of early modern scholars offered largely ‘ornamentations’ but not historical foundations for their argument.48 But, as Stephen C. Neff has put it convincingly,
38 C. Parry, The Sources and Evidences of International Law (1965), at 67 f.; see also Carty, ‘Doctrine versus State Practice’, in B. Fassbender and A. Peters, above note 1, 972, at 982f.
39 Carty, above note 38, at 974.
40 M. Stolleis, Rechtsgeschichte schreiben. Rekonstruktion, Erzählung, Fiktion? (2008); Hueck, ‘The Discipline of the History of International Law. New Trends and Methods on the History of International Law’, 3 Journal of the History of International Law (2001) 194.
41 Anuschka Tischer and Isabel V. Hull in their contributions.
42 Parry, above note 38; Anthony Carty even goes so far as to call legal scholars’ constructions of political practice ‘unscientific’, Carty, above note 38, at 995.
43 van Ittersum, ‘The Long Goodbye: Hugo Grotius’ Justification of Dutch Expansion Overseas, 1615–1645’, 36 History of European Ideas (2010) 386; Hathaway and Shapiro, above note 24, part I; see also the contributions by Lang, Jr, Mallavarapu, and Tischer in this volume.
44 von Bernstorff, above note 27, at 260. Emphasis added.
45 Kelsen, ‘Science and Politics’, 45 The American Political Science Review (1951) 641, at 641.
46 Kelsen, ‘Juristischer Formalismus und Reine Rechtslehre’, 58 Juristische Wochenschrift (1929), at 1723; quoted from von Bernstorff, above note 27, at 977; see also Simon, above note 36.
47 See also Carty, above note 38, at 996.
48 ‘Exempla und dicta sind bei Gelehrten der frühen Neuzeit weitgehend Ornamentik, aber nicht tragende Mauer oder Fundament.’, see Repgen, ‘Kriegslegitimationen in Alteuropa. Entwurf einer historischen Typologie’, in 9 Schriften des Historischen Kollegs. Vorträge (1985), at 15.
‘history is no subject for purists’.49 Theoretical arguments need historical and political contextualization as much as historical and political discourses require theory-driven interpretations.50 Thus, both legal and political discourses have to be addressed. In this respect, the historical approaches to normative war discourses and international order have so far been mainly shaped by studies in legal theory.
This argument is not new: the lack of studies on the politics of justifying war51 and on the linkages between theory and practice was criticized at an early stage, particularly in research on the history of international law and international relations.52 But efforts to fill this gap are still rare.53 In his article of 1985, Repgen referred to the phenomenon that since the thirteenth century political actors were under pressure to justify war which resulted in numerous war manifestos.54 But to his surprise, Repgen found that nobody, neither at home nor abroad, had engaged with this material.55 As Repgen himself speculated, the lack of interest in official pronouncements may have been due to the ruling scientific discourses at the time of his writing: Realism was dominant not only in the History of International Relations and IR, but also in the History of International Law. Wilhelm Grewe’s standard book on the history of international law as a history of shifting hegemonies,56 in which Grewe, as already quoted, spoke of the justification of war as empty ‘propaganda’, was first published in 1984 and thus almost simultaneously with Repgen’s article of 1985 (originally a lecture held in 1984). The realist ‘empty propaganda’ approach trumped Repgen’s plea for taking political declarations of war more seriously for a long time.
49 Neff, above note 1, at 164.
50 R. Koselleck, Vergangene Zukunft: Zur Semantik geschichtlicher Zeiten (10th ed., 2017).
51 Some books offer interesting insights into the practice of domestic political propaganda and media discourse, see J.A. Kuypers, Bush’s War: Media Bias and Justifications for War in a Terrorist Age (2005); D. Welch and J. Fox (eds), Justifying War. Propaganda, Politics and the Modern Age (2012). Research on the justification of the ‘war on terror’, ‘democratic warfare’, and ‘humanitarian interventions’, with a relatively new focus on the ‘Responsibility to Protect’, comes closer to addressing the linkage between justification and international order-thinking, see also A. Bellamy and T. Dunne (eds), The Oxford Handbook of the Responsibility to Protect (2016). However, the respective studies mostly concentrate on the past thirty years and fall short of addressing the theory and practice of justifying force as historical processes of constructing international order.
52 W. Preiser, Die Völkerrechtsgeschichte, ihre Aufgaben und ihre Methode (1964); W. Janssen, Die Anfänge des modernen Völkerrechts und der neuzeitlichen Diplomatie: Ein Forschungsbericht (1965); Repgen, above note 48; Tischer, above note 5; Fassbender and Peters, ‘Introduction: Towards a Global History of International Law’, in Fassbender and Peters, above note 1, 1; Simon, ‘The Myth of Liberum Ius ad Bellum Justifying War in 19th-Century Legal Theory and Political Practice’, in 29 European Journal of International Law (2018) 113. See also on the ‘practice turn’ in International Relations C. Bueger and F. Gadinger, International Practice Theory (2018).
53 Lesaffer, ‘Defensive Warfare, Prevention and Hegemony: The Justifications for the Franco-Spanish War of 1635’, 8 Journal of the History of International Law (2006) 91; A. Geis, L. Brock, and H. Müller (eds), Democratic Wars. Looking at the Dark Side of Democratic Peace (2006); Tischer, above note 5; N. Rengger, Just War and International Order. The Uncivil Condition in World Politics (2013); I.V. Hull, A Scrap of Paper. Making and Breaking International Law during the Great War (2014); E.J. Kolla, Sovereignty, International Law and the French Revolution (2017); Peevers, above note 7; Simon, above note 52; Hathaway et al., ‘War Manifestos’, 85 University of Chicago Law Review (2018) 1139.
54 Repgen, above note 48, at 17.
55 Ibid , at 18.
56 Grewe, above note 4; Fassbender, ‘Stories of War and Peace: On Writing the History of International Law in the “Third Reich” and After’, 13 European Journal of International Law (2002) 479, at 511ff.
A dialogue between Repgen and a US-American colleague highlights what, in Repgen’s view, was (and still is in our view) at stake: as he was searching the files of the National Library in Munich week after week in the winter of 1984, Repgen told the colleague how excited he was about war declarations as objects of historical studies. His colleague responded, ‘with the sympathetic, sad look of a neurologist’: ‘What on earth do you want to do with these texts?’ Repgen replied: ‘Read them.’ His colleague: ‘But these texts contain nothing but lies.’ Repgen: ‘For exactly that reason I want to study them.’ He then went on:
These texts amount to pleas which supposedly use a number of recurrent arguments for the justification of the use of force. If this proves to be correct then we should be able to generate a fairly complete compilation of these arguments. This way we could advance our understanding of the onset of wars in Europe from the fall of Constantinople to the French Revolution. Nobody can force us to continue to look at international relations as an issue of the balance of power, . . which has been the dominant approach for the past 250 years. Presumably we would learn more by looking into the specific reasons given by the war-parties for the legitimacy of their use of force. We would thus be able to construct a pattern which would enable us to discover and describe the particular as it relates to the general without taking refuge to whatever is fashionable at a certain time.57
In this response, Repgen was able to refute a central objection against reading government proclamations voiced by his colleague. Nevertheless, this objection still appears in current methodological debates. Proponents of the heuristic emptiness of government proclamations tend to ignore that turning to normative discourses in political practice does not necessarily also mean to recognize these observed justifications as ‘true’/‘false’ or ‘good’/‘bad’ and thus succumb to an (alleged58) Rankean seduction— instead of trying ‘to show what really happened’ (‘wie es eigentlich gewesen’). 59 Although it is truly helpful to know the ‘motives’ behind war justifications in order to reconstruct a state’s opinio iuris as Clive Parry highlighted it60 Repgen’s and our approach is not about motives. Neither is it our intention to ‘reduce normative orders to practices’.61 Rather, our aim is to emphasize the discursive construction of normative orders through the communicative reference to norms in political practice on the one hand and legal theory on the other (see below). While war discourses in legal theory
57 The dialogue can be found in Repgen, above note 48, at 19 f.; our translation.
58 Lutz Raphael has argued that already in the contemporary reception, the idealistic-philosophical part of Ranke’s method had largely been ignored. Thus, Ranke’s methodology had generally been misinterpreted as a ‘trivial positivist ideal of objectivity’, L. Raphael, Geschichtswissenschaft im Zeitalter der Extreme. Theorien, Methoden, Tendenzen von 1900 bis zur Gegenwart (2003), at 67f.; see also Iggers, ‘The Image of Ranke in American and German Historical Thought’, 2 History and Theory (1962) 17.
59 F. L. von Ranke, Sämtliche Werke, vol. 33/34 (1885), at 7; see also Carty, above note 38, at 978f.
60 C. Parry, The Sources and Evidences of International Law (1965), at 67 f.; see Carty, above note 38, at 982f.
61 See Möllers, ‘Ernst Rudolf Hubers letzte Fußnote. Die normative Ordnung des Nationalsozialismus und die Grenzen der Kulturgeschichte’, 10 Zeitschrift für Ideengeschichte (2016) 47, at 56: ‘Aber eine normative Ordnung auf diese [Praktiken] zu reduzieren bedeutet, ihr das Aspirative, das Kontrafaktische, das Normative abzunehmen.’
are firmly established in the History and Theory of International Law, normative discourses in political practice (from past to present) still have to be reconstructed.
Repgen’s early critique of dogmatic reservations about the role of norms in international politics and his plea for an analytical turn in dealing with this topic more recently have been followed up by an impressive study on belligerent princes’ public declarations of war by Anuschka Tischer.62 By analysing how belligerent princes in early modern Europe actually justified war, which norms were accepted, and to what extent the emergence of modern international law resulted from a process involving elaborate communication in the context of power politics, Tischer reveals the heuristic productivity of an empirical approach to the study of the politics of justification. She also shows to what extent the politics of justification in early modernity contributed to the shaping of modern international law. This way she helps to narrow the gap in our knowledge about the interplay between theoretical discourses on international law and political practice.
Along this line, the present anthology should help to emphasize the importance of minding and bridging the gap between political and theoretical war discourses. For instance, Isabel V. Hull shows in her studies on German justifications of war and international law in the historical context of the First World War, that there was considerable controversy inside the German government about the content of official declarations, and even about whether they were necessary at all. The international reception of Germany’s arguments by other powers underline the argument of other authors in this volume—that is Anuschka Tischer for early modernity, Hendrik Simon for the nineteenth-century Great Powers, Paul Robinson and Mikhail Antonov for recent debates between Russia and the West, or Michael Stohl for constructions of ‘terrorism’: within different historical communication communities or communities of practice, the justification of the use of force became a political discourse about normativity. This at least in part conditioned political leaders to believe themselves to be restrained in their decisions for or against war by a common understanding of when the use of force was permissible.
Again, this re-orientation of research towards the inclusion of the practice of justification does not at all devalue the analysis of doctrinal discourses on the justification of war and international order as historical sources and philosophical reflections. Thus, some of the contributions in this volume may have a more ‘classical’, theory-driven focus (see also the contributions by Chris Brown, Anthony Lang, Jr, Oliver Eberl, and B.S. Chimni) than those chapters that aim at writing a history of international order on the basis of political practice. The interesting question is to what extent these different approaches speak to each other. As already pointed out, we assume that there is a close interplay between political practice and theoretical reflection. This interplay of theory and practice comes to the fore in the role of the international lawyer who observes legal practices and by doing so intervenes in the formation of law.63 For instance, the contributions by Miloš Vec, Thilo Marauhn, Bhupinder S. Chimni, Siddharth Mallavarapu, and Arnulf Becker Lorca show that in discourses addressing the normative side of war lawyers themselves operate as visionaries64 or critics of political practice65 and
62 Tischer, above note 5; see also Anuschka Tischer’s contribution to this volume.
63 See also Janssen, above note 52, our translation; Simon, above note 36.
64 See also Koskenniemi, above note 17; Hathaway and Shapiro, above note 24.
65 See the contribution by Chimni on ‘Peace through Law’ in this volume.
this way get involved in the shaping of international order. Bridging the gap between practice and theory might then be ‘the most difficult problem of the scientific treatment of international law in its history’.66 Nevertheless, we deem it both necessary and worthwhile to work on this issue, preferably from different disciplinary perspectives and methodological angles.
3. The Politics of Justification: War Discourses as a Struggle for Order/Authority
As mentioned above, this book’s core thesis is that the history of war justifications also refers to the history of international order(s). Thus, the subject of war discourses touches on the quest for ordering the international, which has always been at the core of scholarly debates in (the History of) International Law and International Relations.67 Or, as Nicholas J. Rengger has put it,
the very fact of the existence of multiple and often widely diverse ‘communities’ coupled with the fact of their interactions and interrelations makes the problem of order at the international level inescapable. Accounts of ‘international’ or ‘world’ order are the inevitable result as is the fact that accounts of international relations cannot but try and deal with the problem of order.68
The way in which order is thought about is thus the subject of historically changeable worldviews. This is of central importance for a genealogical treatment of the role of international norms in war discourses. However, there are no commonly shared definitions of ‘international order’, especially with regard to one of its most important fields, the order of war and violence. It depends on one’s theoretical point of view whether international order is understood as ‘a pluralist and limited society of sovereign states’,69 or as the rule of the powerful70 and rich,71 or—in Kantian terms—as a legal order that will eventually overcome war.
While Realists have no problem with defining war as an aspect of international order, normative theory tends to juxtapose the two. Richard Falk defines international order as ‘the distribution [both] of power and authority among the political actors on the global stage’.72 With this he points to the double feature of order as based on
66 Steiger, ‘Ius belli in der Völkerrechtsgeschichte—universelle Geltung oder Beschränkung auf “anerkannte Kulturvölker”?’, in T. Bruha, S. Heselhaus, and T. Marauhn (eds), Legalität, Legitimität und Moral. Können Gerechtigkeitspostulate Kriege rechtfertigen? (2008) 59, at 62.
67 Tuck, above note 1; Kadelbach et al., above note 33; G. Krell, Weltbilder und Weltordnung. Einführung in die Theorie der internationalen Beziehungen (4th ed., 2009); G. Hellmann (ed.), Theorizing Global Order: The International, Culture and Governance (2018); see also the special issue G.J. Ikenberry, I. Parmar and D. Stokes (eds), ‘Ordering the World? Liberal Internationalism in Theory and Practice’, 94 Foreign Affairs (2018).
68 N.J. Rengger, International Relations, Political Theory, and the Problem of Order (2000), at 2; see also Rengger, above note 53.
69 A. Hurrell, On Global Order: Power, Values, and the Constitution of International Society (2013), at 3.
70 See also Grewe, above note 4.
71 See also Chimni, above note 13.
72 Falk, ‘World Orders, Old and New’, 98 Current History (1999) 29.
‘power’ and ‘authority’ (which encompasses political, moral, or legal authority).73 On the one hand, international order—like any order—is based on political, social, and economic power (asymmetries). On the other hand, however, international orders are also ‘normative orders’ since any political order needs justification.74 Order not only offers stability (first and foremost of expectations), but also involves the issue of legitimacy and authority. Society and order are not possible without the formation of generally shared convictions75 and accepted norms: ubi societas, ibi ius. 76 Furthermore, ‘no political society, national or international, can exist unless people submit to certain rules of conduct’.77 Where no norms, rules, or standards are considered binding, anarchy prevails.
This is to say that international order is constituted by power and norms.78 (The Histories of) International Law and International Relations have usually treated power and normativity as a dichotomy. However, both spheres are historically closely interwoven: norms rely on political acceptance, and even the crudest power politics refer to justification. With this the analytical focus shifts from dealing exclusively with the distribution of power to the inclusion of the processes through which legitimacy79 and authority in an international order are established.
Thus, the formation of order at the international level is not only a political but also a social process of criticism and conflict, as critical theorists like Walter Benjamin or Michel Foucault emphasize.80 Furthermore, the emergence of normative orders, especially at the international level and particularly in the highly politicized field of justifying war, is shaped by power struggles and struggles over the authority of fundamental normative standards concerning the use of force. Rudolf von Jhering (1818–1892) put this aptly with reference to legal norms, ‘Law is a struggle’ of mankind (in the shape of ‘nations, of the state, of classes, of individuals’) to tame and, thus, to civilize itself.81
73 M. McDougal (ed.), Studies in World Public Order (1960); on ‘legal authority’ see Besson ‘The Authority of International Law: Lifting the State Veil’, 31 Sydney Law Review (2009) 343 ; Zürn, ‘From Constitutional Rule to Loosely Coupled Spheres of Liquid Authority. A Reflexive Approach’, 9 International Theory—A Journal of International Politics, Law and Philosophy (2017) 261.
74 Forst, above note 3; Forst and Günther, above note 8; A. Hirsch, Recht auf Gewalt. Spuren philosophischer Gewaltrechtfertigung nach Hobbes (2004); Brock and Simon, above note 7.
75 Deitelhoff, ‘The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case’, 63 International Organization (2009) 33.
76 This is an assumption that is widespread both in IL and IR, even if different schools and authors disagree on the binding power of these rules in international or world order, see J.J. Brierly, The Law of Nations: An Introduction to the International Law of Peace (1963), at 1; K.D. Wolf, Internationale Verrechtlichung (1993), at 39, 51; Koskenniemi, ‘The Politics of International Law’, 1 European Journal of International Law (1990) 1, at 1; Kolla, above note 53.
77 E.H. Carr, The Twenty Years’ Crisis: 1919–1939: An Introduction to the Study of International Relations (1962), at 41.
78 Ikenberry, ‘The Logic of Order: Westphalia, Liberalism, and the Evolution of International Order in the Modern Era’, in G.J. Ikenberry (ed.), Power, Order, and Change in World Politics (2014) 83, at 83f.; Forst, above note 3.
79 T. Franck, The Power of Legitimacy Among Nations (1990).
80 Benjamin, above note 2; Foucault, above note 2. For other relevant theorists see above note 15.
81 R. von Jhering, The Struggle for Law, translated by J.J. Lalor (1915/1997), at 1; See also Cotterrell, ‘The Struggle for Law: Some Dilemmas of Cultural Legality’, 4 International Journal of Law in Context (2009) 373; J. von Bernstorff and P. Dann (eds), The Battle for International Law South-North Perspectives on the Decolonization Era (2019).
This notion of law (and other spheres of normativity) as a social struggle refers to the procedural character of the emergence of normativity: as outlined above, discourses on norms socialize political actors with regard to domestic82 as well as international politics.83 Within these discourses, norms continuously are the subject of social and political debates. This points to a fundamental dialectic of the historical discourse of the justification of war and international order: by referring to order in their justification of war, political actors or theorists not only attempt to identify their own use of force as ‘appropriate behaviour’ in accord with the norms of the international order,84 they also claim to restore an order recognized as legitimate. However, in the asserted restoration of old normativity, political actors mix old and new forms, concepts and ideas of ordering the international. In other words: In their war justifications, political actors claim to restore an old order; but they actually create something new precisely with this claim.85
Processes of building international order always have involved the justification of the use of force as a means to provide for peace or at least as a way of restoring civil order.86 To quote Jhering again: ‘The end of the law is peace. The means to that end is war.’87 This entanglement of international ordering and the use of force Walter Benjamin would have described as schicksalhafte Gewalt (‘fateful violence’). In his famous essay Kritik der Gewalt (‘Critique of Violence’), Benjamin defined violence as the origin of law, which appeared either in the form of law-making or law-preserving violence: ‘Lawmaking is power making, and, to that extent, an immediate manifestation of violence.’88 This violence cannot be completely overcome even in a purely legal system. Or, in the words of Hans Kelsen: a normative order always is a ‘coercive order’ (see also Daase and Deitelhoff in this volume).89
Of course, it makes a big difference whether the use of force is embedded in the rule of law or in some authoritarian set-up in which submission prevails. However, even under the rule of law, law remains a double-edged sword because it operates under the condition of an uneven distribution of power and vulnerability. The rule of law therefore tends to nudge the citizen into an uneasy acceptance of rules typical for a hegemonic constellation.90 The point is that the dialectic relationship between war and order is perpetuated not only by the exertion of power as such but in a continuous discourse on the legitimacy of the use of force and the authority to exercise it. This calls into question realist narratives of anarchy, and also liberal narratives of progress in the
82 Peevers, above note 7.
83 Kratochwil, above note 10; Wendt, above note 10; Checkel, above note 10; Wiener, above note 10.
84 Finnemore and Sikkink, above note 9, at 891; Jepperson, Wendt, and Katzenstein, above note 9, at 54.
85 See also Tischer, above note 5; and our concluding chapter, which deals with Koselleck’s Wiederholungsstrukturen
86 See also Joas and Knöbl, above note 2; see also the contributions by Anna Geis/Wolfgang Wagner, Arnulf Becker Lorca, and Beate Jahn to this volume.
87 von Jhering, above note 81.
88 Benjamin, above note 2; in a similar vein, Michel Foucault reversed Clausewitz’ famous formula of war as ‘the continuation of politics with other means’; Foucault spoke of politics as the ‘continuation of war with other means’, see Foucault, above note 2.
89 Kelsen, above note 14.
90 Buckel and Fischer-Lescano, ‘Gramsci Reconsidered: Hegemony in Global Law’, 22 Leiden Journal of International Law (2009) 437.
discourse on violence in international relations.91 Instead, the relationship between war and order underlines the need for a systematic historical contextualization of war discourses as complex struggles for normativity in the face of power politics. As mentioned above, neither power nor normativity prevail in these discourses. They rather interact continuously.
Discourses on the use of force are therefore understood here as discourses in which the emerging or existing normative frame of reference for the use of force at the same time is claimed to be valid, contested, modified, and rejected.92 To define norms only on the basis of their written codification as a fixed ‘set of rules’ is therefore a clear analytical mistake. International law is about the social practice of negotiating acceptance of norms in historical communication communities,93 or, in a modified version of a formulation by Randall Lesaffer, it is about ‘multiple normativities in action’.94 This also underlines, once again, the importance of turning not only to theory but also to the political practice of justifying war.
In the late nineteenth century, in the midst of the European imperial world order, the struggle for order involved strategic efforts by Japan and some of the existing political entities in the South to study European international law in order to be able to meet the requirements for being accepted as subjects of international law.95 For many states, belonging to the normative order of European international law became the yardstick of ‘civilization’ in the nineteenth century. For other socio-political entities, this combination of international law and ‘civilization’ meant that European standards were imposed on them by unequal treaties, interventions, colonialism, and ‘civilizing missions’ (see the contributions by Mallavarapu, Becker, Benton, Genell and Aksakal, Chimni, Hippler, Lange, Wilén, Jahn, and Hashmi to the present volume).96 The discourse on the use of force was clearly Western-dominated as it distinguished between legitimate reasons and means for war among major powers or ‘civilized’ states on the one hand, enforcement between European states and the non-European ‘(semi-)periphery’ on the other.97 This order worked on the basis of simultaneous submission, uneasy acceptance, traces of mutual recognition, and an international rule of law. What we experience today is a cacophony of the basic working principles of international order which reveals that there is a lot of tension between them.
91 On the narratives of ‘anarchy‘ and ‘progress’ in modern historiographies of the justification of war and international order, see Hendrik Simon’s chapter in this volume.
92 A. Wiener, Contestation and Constitution of Norms in Global International Relations (2018); see also Wiener, above note 10.
93 J. Brunnée und S.J. Toope, Legitimacy and Legality in International Law: An Interactional Account (2010); Brunnée und Toope, ‘Norm Robustness and Contestation in International Law: Self-Defense against Nonstate Actors’, in 4 Journal of Global Security Studies (2019) 73.
94 ‘Law in action’, see Lesaffer, ‘Introductory Note’ to R. Kubben, Regeneration and Hegemony: FrancoBatavian Relations in the Revolutionary. 1795–1803 (2011), at xii.
95 A. Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (2015); Payk, above note 24, at 42; G. Simpson, Great Powers and Outlaw States. Unequal Sovereigns in the International Legal Order (2009).
96 Ibid.
97 I.V. Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (2004); H. Kleinschmidt, Diskriminierung durch Vertrag und Krieg. Zwischenstaatliche Verträge und der Begriff des Kolonialkriegs im 19. und frühen 20. Jahrhundert (2013); von Bernstorff, above note 27.
