ESIL Interest Group History of International Law

ESIL Interest Group History of International Law

dinsdag 27 november 2018

JOURNAL: Journal of Modern Intellectual History, Forum "Law, Empire and Global Intellectual History" (July 2018)

(image source: Cambridge Core)

Introduction (Mililnda Banerjee & Kersten Von Lingen, "Law, Empire and Global Intellectual History: An Introduction"):
In recent years, there has been a deepening convergence between scholarship on global intellectual history and on legal history. To take just one example, a recent book on international law, by Arnulf Becker Lorca (2014), carries “global intellectual history” in its subtitle—a stance related to the author's emphasis on the constitutive role in the field of non-European legal actors.1 A sustained reflection on the convergence between legal studies and global intellectual history, however, still remains a desideratum, at least in the sense that we do not yet have even a basic platform where scholars with different space/time and (trans-) cultural specialization come together to reflect on how studying legal concepts gains from global intellectual history. This forum, which results from a conference organized at Heidelberg University in 2016, attempts a preliminary intervention here. The introductory remarks are not meant to be conclusive; they invite responses.

"Property and Political Norms: Hanafi Juristic Discourse in Agrarian Bengal" (Andrew Sartori)
This article explores the reception of discourses about land and property in Islamic jurisprudence in colonial Bengal. I argue that Hanafi fiqh provided a sophisticated conceptual repertoire for framing claims to property that agrarian political actors in Muslim Bengal drew upon. Yet the dominant framework for understanding property claims in postclassical jurisprudence was ill-fitted to claims of the kind that agrarian movements in colonial Bengal were articulating. As a result, twentieth-century agrarian movements in the region spoke the language of fiqh, but nonetheless inhabited the ideological landscape of a much broader twentieth-century world of political aspirations and norms.

"Sovereignty as a Motor of Global Conceptual Travel: Sanskritic Equivalents of “Law” in Bengali Discursive Production" (Milinda Banerjee)
How may one imagine the global travel of legal concepts, thinking through models of diffusion and translation, as well as through obstruction, negation, and dialectical transfiguration? This article offers some reflections by interrogating discourses (intertextually woven with Sanskritic invocations) produced by three celebrated Bengalis: the nationalist littérateur Bankimchandra Chattopadhyay (1838–94), the Rajavamshi “lower-caste” peasant leader Panchanan Barma (1866–1935), and the international jurist Radhabinod Pal (1886–1967). These actors evidently took part in projects of vernacularizing (and thereby globalizing through linguistic–conceptual translation) legal–political frameworks of state sovereignty. They produced ideas of nexus between sovereignty, law, and “divine” lawgiving activity, which resemble as well as diverge from notions of political theology associated with the German jurist Carl Schmitt. Simultaneously, these actors critiqued coercive impositions of state-backed positive law and sovereign violence, often in the name of globally oriented concepts of “ethical”/natural law, theology, and capacious forms of solidarity, including categories like “all beings,” “self/soul,” “humanity,” and “world.” I argue that “sovereignty,” as a metonym for concrete practices of power as well as a polyvalent conceptual signifier, thus dialectically provoked the globalization of modern legal intellection, including in the extra-European world.

"Legal Flows: Contributions of Exiled Lawyers Toward the Concept of ‘Crimes Against Humanity’ During the Second World War" (Kerstin Von Lingen)
This article addresses the normative framework of the concept of “crimes against humanity” from the perspective of intellectual history, by scrutinizing legal debates of marginalized (and exiled) academic–juridical actors within the United Nations War Crimes Commission (UNWCC). Decisive for its successful implementation were two factors: the growing scale of mass violence against civilians during the Second World War, and the strong support and advocacy of “peripheral actors,” jurists forced into exile in London by the war. These jurists included representatives of smaller Allied countries from around the world, who used the commission's work to push for a codification of international law, which finally materialized during the London Conference of August 1945. This article studies the process of mediation and the emergence of legal concepts. It thereby introduces the concept of “legal flows” to highlight the different strands and older traditions of humanitarian law involved in coining new law. The experience of exile is shown to have had a significant constitutive function in the globalization of a concept (that of “crimes against humanity”).

"Liberalism, Cultural Particularism, and the Rule of Law in Modern East Asia: The Anti-Confucian Essentialisms of Chen Duxiu and Fukuzawa Yukichi Compared" (Kiri Paramore)
How and why are universalist modes of political thought transformed into culturally essentialist and exclusionary practices of governance and law? This article considers this question by analyzing the interaction between Confucianism and liberalism in East Asia. It argues that liberalism, particularly as it was used in attacking Confucianism, was instrumental in embedding ideas of cultural particularism and cultural essentialism in the emergence of modern political thought and law in both China and Japan. Both Confucianism and liberalism are self-imagined as universalist traditions, theoretically applicable to all global societies. Yet in practice both have regularly been defined in culturally determined, culturally exclusivist terms: Confucianism as “Chinese,” liberalism as “British” or “Western.” The meeting of Confucian and liberal visions of universalism and globalism in nineteenth-century East Asia provides an intriguing case study for considering the interaction between universalism and cultural exclusivism. This article focuses on the role of nineteenth-century global liberalism in attacks upon the previous Confucian order in East Asia, demonstrating the complicity of liberalism in new, culturally essentialist and particularist constructions of governance and law in both China and Japan.

"Autonomy and Decentralization in the Global Imperial Crisis: The Russian Empire and Soviet Union in 1905–1924" (Ivan Sablin & Alexander Semyonov)
This article brings the case of imperial transformation of the Russian Empire/Soviet Union into global discussions about empire, nationalism, and postimperial governance, and highlights the political and legal imaginaries that shaped this transformation, including their global and entangled character. This article argues that the legal and political discourses of decentralization, autonomism, and federalism that circulated at the time of the imperial crisis between the Revolution of 1905 and the adoption of the Soviet Constitution in 1924 contributed to the formation of an ethno-national federation in place of the Russian Empire, despite both the efforts of the Bolsheviks to create a unitary state, and the expectations of a different future among contemporary observers. At the same time, the postimperial institutional framework became a product of political conjunctures rather than the legal discourse. Its weakness before the consolidating party dictatorship made the Soviet Union a showcase of sham federalism and autonomism.

"Jewish Modern Law and Legalism in a Global Age: The Case of Rabbi Joseph Karo" (Roni Weinstein)
During the late sixteenth and early seventeenth centuries, Rabbi Joseph Karo composed two major Jewish codes of law: the Beit Yosef, and its abridged version, Sulchan ‘Aruch. Though several centuries of legal discussion and scholarship have passed since their publication, these double codes of law were never superseded. This codification project defined the axial place of law in Jewish tradition. I argue that it responded to changes in legal processes and the enforcement of law that simultaneously transformed early modern Europe and the Ottoman world. Transcontinentally connected changes in political institutions—the formation of a centralized Islamic empire in the Ottoman case, and the formation of centralized states in Europe—dramatically redefined the role of law and legal codification in the forging of state power and community identities. The resultant belief among Sephardi rabbis, including Karo, that changes in Jewish legal tradition were now needed, prompted a redefinition of Jewish legal culture, whereby law (a gradually centralized conception of it) began to be seen as the foundation of Jewish religious heritage and ethnic identity. Despite the absence of state backing, early modern transformations in Jewish law were thus part of comparable changes taking place in the European and Islamic legal worlds.

Find the full issue on Cambridge Core.