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V Methodology and Theory, 41 The Periodization of the History of International Law

Oliver Diggelmann

From: The Oxford Handbook of the History of International Law

Edited By: Bardo Fassbender, Anne Peters

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved. Subscriber: null; date: 10 December 2022

Subject(s):
1648-1815 — Ancient Times to 1648 — 1815 to World War I — World War I to World War II — Since World War II

(p. 997) 41  The Periodization of the History of International Law

1.  Introduction

1.1.  Historiography of International Law and Periodization

The division of historical time into periods is indispensable for any historiographical work. Historical facts cannot be identified without referring to a time frame with a more or less determinable beginning and end. Periods make historical facts ‘thinkable’, as the Polish historian Krzysztof Pomian said.1 This chapter explores the significance of the question of periodization in historiography of international law.

Literally, the term ‘peri-hodos’—of which the notions ‘period’ and ‘periodization’ are derived—means ‘the way around’ in ancient Greek. From antiquity to the 18th century, the idea that history follows a cyclical and predetermined course played an important and often dominant role. History was imagined as a constant repetition of destined events which could not be altered by human will—like a turning wheel. Contemporary use of the term ‘period’ no longer connotes the (p. 998) original meaning.2 It has become a synonym for a certain span along the axis of historical time.

Periodization decisions can be made explicitly or implicitly. If someone analyses, for example, the question of ‘Egyptian Responses to the Palestine Problem in the Interwar Period’,3 he operates explicitly with a well-established period. The beginning and end of the relevant time frame are clear and need no further explanation. If someone analyses, however, the topic ‘Self-determination and Secession under International Law’,4 the relevant time frame is not specified. Nevertheless, it does exist. It results from the overlap of those time spans during which a right to self-determination, including a right to secession, is recognized, and during which international law exists.

The formation of ‘new’, formerly unknown periods is an essential part of historiographical innovation. New periodizations aim to provide new insights. They shed different light on historical facts, not only on newly discovered ones but also on supposedly well-known facts. They reorganize historiographical knowledge. It makes a difference, for example, whether we regard the establishment of the United Nations Organization as the beginning of the ‘era of the UN’ or as an important event in the ‘era of modern international law’. It also makes a difference whether we regard the present as part of ‘the era of the United Nations’ or of the ‘post-Cold War era’.

A good example is provided by the well-known book The Gentle Civilizer of Nations by the Finnish international lawyer Martti Koskenniemi.5 The author's intention was to shed new light on the history of international law. He chose the subtitle ‘The Rise and Fall of International Law 1870–1960’, which was somewhat surprising with respect to the periodization employed. The study analysed the development of a sensitivity towards international affairs. By operating with the period ‘1870–1960’, it challenged predominant views of the history of international law.6 It challenged, for example, views connected with the established distinction between the period of ‘classical international law’ and ‘modern international law’. Koskenniemi's periodization suggests an interpretation of historical facts, which differs fundamentally from the typical ‘narration of progress’ in mainstream scholarship.7

(p. 999) The significance of the question treated here contrasts significantly with the attention paid to it in historiography of international law. There hardly exist any ambitious theoretical contributions to the topic and its far-reaching implications at all. In historiography of international law, defining periods is considered as something one ‘does’ and not as something one theorizes about. Consequently, this brings up the critical observation that historiography of international law is not fully aware of what it does whenever periodization decisions are not considered.

There might be two main reasons for such an omission. It is likely, on the one hand, that as a theoretical topic, periodization does not offer great promise. The question might seem ‘too theoretical’ for a legal discipline and is therefore left to historians. On the other hand, not engaging with the issue of periodization might also be connected with widely shared negative attitudes towards ‘world history’ and ‘grand narratives’. The basic idea underlying such scepticism is that it is simply not possible to speak about large time spans in any meaningful way.8 ‘Grand narratives’ or ‘master narratives’—which necessarily make use of ‘master periodizations’—are suspected by many of being ideological or even naïve. A classical example is Arnold J Toynbee's A Study of History which was written in the 1930s and contained—in 5,500 pages—an interpretation of the whole world history as a history of civilizations.

1.2.  Interests and Values

Periods are not facts. They are concepts helpful for organizing our knowledge, based on a choice of facts which are considered as ‘relevant’ by an author in the light of the necessity to envelop historical time by some structure. Periods are interpretations of facts, not the facts themselves. Challenging established periods means challenging established interpretations of history.9 Well-established periods such as ‘the Age of Enlightenment’ or ‘the era of the League of Nations’ may have reached a kind of quasi-objective status in practice. It does not alter, however, their purely interpretive character. The fact that periods are only intellectual devices leads some authors to think that there is no such thing as periods or epochs at all.10 Others—who do not want to go that far—regard periods, metaphorically speaking, as ‘grids’ we lay over the reality and which help us to organize our knowledge. The German historian Johann Gustav Droysen looked for a metaphor to describe them, given that they are (p. 1000) no objective reality but nevertheless necessary constructions to understand it. He wrote that in history there are no epochs as there are no lines on the Equator and on the meridian circles; epochs are concepts of thought which are attributed to empirical reality and which serve the aim of grasping it better.11 How one defines periods is to a large extent a matter of discretion. Even if we admit—to speak with Hans-Georg Gadamer—that in history there exist something like experiences of discontinuity,12 there is no guidance how to define periods. Which criteria are meaningful? Should the demarcation of a new period actually begin with the appearance of something distinctly new or not before the new, in fact, becomes the dominating factor in its own right? Should we consider such a ‘point of no return’ as decisive?

Periodization decisions are influenced mainly by two factors. First, there is the historian's inclination to work with established periods if the research topic admits so. A lot of research is conducted within a temporal framework of established periods. In each historiographical discipline there are standard or ‘conventional’periodizations available which belong to its basic vocabulary.13 They can be employed without further explanation. The inclination to employ them for reasons of research economy evidently produces a certain conservative element. The second factor is one's personal values. Our values influence our cognitive interests. In this sense, periodizations are subjective.14 Whether one is more interested in ‘international stability’ or in ‘international justice’—whatever the differences may be in detail—in the last instance depends on one's values, which shape our cognitive interests. They structure our perception of the time dimension and determine what the historian is interested in and which facts he chooses to omit.

The so-called socialist theory of international law, for example, which played a role in 20th-century doctrine, was mainly interested in class conflicts. It looked at the history of international law ‘through the lens’ of class struggles and expected gradual progress for the working class and, finally, its victory. From the socialist perspective, the Bolshevist Revolution has the status of a turning point of history in general and also of the history of international law. A radical variant claimed that there was no history of international law before the Bolshevist Revolution at all.15 More moderate authors suggested that there was indeed one but which was only ‘primitive’ in nature. Also, in their view, the Bolshevist Revolution marked the ‘beginning’ of the history of international law in the proper sense. Periodization decisions structure the ‘lens’ (p. 1001) through which we regard the history of international law and thereby reproduce our view of the world.

Illustrative examples are also provided by authors of the ‘Third World Approach’ to international law. If an author is interested in the question of imperial domination and wants to tell the history of international law ‘from an African perspective’, he will have to work with completely different periods than socialist authors or authors from Western countries who are interested in the history of specific institutions of the modern State system. From an African perspective, it is plausible to distinguish, for example, the periods ‘ancient and pre-Medieval Africa’, ‘indigenous African States’, ‘beginnings of European trade’, and ‘the period of colonial rule’.16 There is an inescapable dilemma. Periods should, on the one hand, be ‘right’ and ‘true’, but, on the other hand, any diligent intellectual has to admit the unavoidable subjectivity of his periodization decisions.

2.  Fundamental Questions

2.1.  Core of Conventional Periodizations

In historiography of international law a number of ‘conventional’ periods or periodizations exist. For the purpose of this chapter, I call those time spans ‘conventional’ that belong to the basic time-vocabulary of the discipline and have a more or less determinable beginning and end. Conventional periodizations can be used without further explanation as they are immediately comprehensible. They facilitate the organization of one's knowledge. Their privileged status is owed to the fact that they have proved meaningful as time frames for historiographical work in a relatively large number of instances.

Which periods belong to this category? The most important conventional periods in historiography of international law are also conventional periods in general historiography. In the first place, the tripartite division of history into ancient, medieval, and modern history has to be mentioned. This was introduced by Christophorus Cellarius (1634–1707).17 The three periods equally belong to the standard time-vocabulary in historiography of international law and provide its primary temporal structure. Further periodizations developed in general historiography, which have an almost similar status are, for example, ‘the Age of Enlightenment’, ‘the 19th century’, and ‘the 20th century’.

(p. 1002) Several periods developed in the disciplines of international law and international relations are also ‘conventional’ in the sense described above. The following ones need to be pointed out here in particular: the periods of ‘classical international law’ and ‘modern international law’, the period between the Peace of Westphalia and the Napoleonic Wars (‘the French age’), the period between the Congress of Vienna and the First World War (‘the British age’), and the period between the First and the Second World Wars (‘the era of the League of Nations’ or the ‘inter-war period’). These three mentioned periods are often designated with cyphers (1648–1815, 1815–1914, and 1919–1939).18 They have the same basic structure. They begin with a peace conference after a great war and they end with the breakdown of an international order.19

Conventional periods impose a kind of ‘burden of justification’ on those who want to depart from them. An author who intends to write, for example, on the topic ‘slave trade and international law between 1700 and 1800’ will have to justify his periodization. He will most probably expect his approach to generate criticism with respect to the scientific character of his undertaking if he cannot give convincing reasons for the time frame he chooses. In The Gentle Civilizer of Nations, Martti Koskenniemi had to justify why he wanted to operate with the period ‘1870–1960’. He did so by pointing to empirical facts to explain why the time frame he introduced, which was considered ‘new’, provided a meaningful time frame in his view for the particular research undertaking. The creation of ‘new’ periods does not extinguish old ones. Conventional periods remain present as background time-structures even if we depart from them. We refer to them explicitly or implicitly when we justify the ‘new’ ones.

2.2.  Periods as Units

To some extent, periods are imagined as ‘coherent’ time units. We imagine that the facts included in them ‘belong together’.20 We speak of a ‘spirit’ of an age or Zeitgeist—the successor of Montesquieu's esprit du siècle—or of a specific cultural consciousness which gives the period its particular character.21 However, any periodization is inherently problematic as any period is an abstraction from the historical process.22 (p. 1003) There is no ‘general idea’ underlying them, they have no ‘meaning’. This does certainly not exclude that some of the facts included in them indeed belong together materially. Contemporaneity, however, does not provide material coherence per se. It is a purely formal criterion. Some facts included in a period regularly do not fit together with the rest. It is inevitable that periodizations always appear as inadequate to some extent.23 Periods are by their nature over-inclusive. They over-unite for the purpose of facilitating intellectual orientation. The bigger a time span, the more over-inclusive it is.

A well-known practice in historiography of international law provides a good example. There exists a common practice to distinguish between the ‘practice’ and the ‘theory’ of a period. Studies and book chapters on the inter-war period, for example, regularly contain sections on both topics. However, many important theoretical contributions of the inter-war period rather ‘belong’ to the extreme experience of the First World War in a material sense. Theoretical writings of the period were in many respects ‘reactions’ to the war, attempts to regain lost orientation. They were initially not intended as attempts to describe the reality of their time. Given these considerations, it cannot surprise that ‘theory’ often makes the impression of being somewhat detached from the reality of its time. Theory is always more than an appendix to a particular epoch. It often deals simultaneously with the past, the present and the future. This makes it difficult if not impossible to attribute it to a precise era. The optimistic spirit of George Scelle's writings of the 1930s, for example, openly contrasts with the reality of these years. It cannot be understood properly if it is just read as a theory to describe Scelle's time. Therefore, it is questionable whether periodizations including theory and practice make sense at all.24

Periods also tend to overemphasize discontinuities. This is one of the most important problems of periodization. By cutting the time axis into pieces, periodization tends to give preferences to discontinuity over continuity. Introducing a new period primarily provides reasons why a specific time span should be regarded as a ‘unit’ and be treated separately. This mechanism emphasizes discontinuity, such as the differences between what took place ‘before’ and ‘after’ the period under scrutiny. In contrast, continuity receives little attention. The problem can be mitigated to some extent if we speak of a ‘threshold between epochs’ instead of a ‘change of periods’ as the notion ‘threshold’ signals sensitivity for the question discussed here. Nevertheless, by its nature, periodization risks disrupting continuous developments—as subtle as it may be.25 The cultural historian Jakob Burckhardt complained bitterly about this problem. He called it one of the biggest problems of his discipline as periodizations disrupt long-term continuity and cut history into seemingly discretionary (p. 1004) pieces—just for the sake of making the massive substance of events somehow manageable.26 General historiography—and also historiography of international law—struggle with the same fundamental problem. The distinction between the ancien régime and the French Revolution, for example, blurs the fact that there was an impressive continuity with respect to the leading classes.27 The distinction between the periods of ‘classical’ and ‘modern’ international law—to return to our discipline—desensitizes the fact that in Europe there was a long tradition of dwelling over mechanisms to maintain peace and to minimize the costs of wars. There certainly were important changes after the First World War, but there was also—beneath the surface—much continuity.

An illustrative example is also provided by Wilhelm Grewe's well-known periodization concept.28 In his opus magnum, Grewe distinguishes several hegemonic periods: the age of Spanish, French, English, etc. domination. He calls each period after the respective hegemonic power. The concept has some evident advantages: it highlights the great influence of hegemonic powers on the fundamental rules and the culture of an era. French culture and language, for example, exercised strong influence on the international order in the 17th and 18th centuries when France was the dominating power. It shaped the culture of international diplomacy in particular. Grewe's concept, however, disrupts many continuities. Many fundamental rules of the late 17th and 18th centuries had developed over time and they did not alter fundamentally when France became the hegemonic power. They also continued to exist in the subsequent era of British domination in many respects. Grewe's periodization is not at all sensitive for the fact that the European monarchies were anchored in a long-lasting common political, cultural, and spiritual tradition.

2.3.  The ‘First’ Period

When did the history of international law ‘begin’? Which was the ‘first’ period? There is evidently no objective ‘right’ answer to this—admittedly not very new—question. The period we consider ‘the first’ depends on the ‘concept of international law’ we employ which provides the criteria for our search. In the last instance it depends on the cognitive interests and values which influence what we mean by ‘international law’. The answer is always a relative one. If we are interested, for example, in the history of the international law of sovereign territorial States, it is plausible to assume (p. 1005) the ‘beginning’ at some point in the late Middle Age or in the early Modern Age. The nucleus of the modern state system developed in the late Middle Age. If we are interested, however, in the history of legal and quasi-legal relations between relatively independent political entities, the answer is different. Wolfgang Preiser, for example, employed three criteria in his search—‘inter-state intercourse’, ‘relative independence of the States’, and ‘consciousness of legal obligation’—and came to the conclusion that the first international legal system were the rules of the state system of the Near East between 1450 and 1200 BC.29 Antonio Truyol y Serra used the criterion ‘treaty’. He regards the year 3010 BC as the date of birth of international law as then the first treaty was concluded in ancient Mesopotamia.30

The question about the ‘beginning’ of the history of international law is evidently connected to the question about its Eurocentricity. A few remarks may suffice here. Eurocentrism is primarily a question of cognitive interests and subjective values which are also reflected, of course, in periodizations. Eurocentric periodization is a manifestation of Eurocentric cognitive interests. If an author is interested in the expansion of the European international law across the globe, he is likely to write a ‘European’ history of international law with corresponding periodizations. His perspective predetermines his periodization decisions. If an author is interested, however, in ‘Africa's contribution to international law’—to come back to the aforementioned example—the relevant periods could be ‘ancient Africa’, the era of the ‘indigenous African States’, etc.31 Authors may suggest narrating the history of international law for each cultural area separately, that is, for the Mediterranean area, the region of the Near East, for the area of the Arabian caliphat, for India's state system, and the region of East Asia, etc.32 Each of these areas has its own view of the history of international law and accordingly also, its own ‘beginning’ and periodization.

2.4.  The ‘Last’ Period

The ‘last’ period also poses particular challenges. The thorny question is whether the present—which has no determinable end—can be part of a historical period in the sense of meaningful periodization. Historical experience is constituted by ‘before’ and ‘after’.33 Some authors regard the ‘now’ as too unspecific to be part of a historical epoch. Periodization requires distance, and history has many examples (p. 1006) in which the assessment of a time by its contemporaries was not shared by later generations. What might appear as singular to contemporaries—atrocities of war, unexpected atmospheric changes in international relations—is not necessarily singular in a historiographical sense. What might appear as a ‘revolution’ to contemporaries must not be a revolution in a more ambitious sense. We do not know yet, for example, whether the ‘cultural revolution of 1968’ will sometime in the future be regarded as a threshold to a new period of social history. It is possible that many aspects will be regarded by future generations as momentary phenomena. The fact that the contemporaries are convinced about the revolutionary character of their time is not per se conclusive. Of course, the events of those years were turning points in the biographies of many of them and made the ‘before’ seem as something coherent and completed. We do not know enough of the future to contextualize the present adequately. In some instances whole generations were convinced of the singularity of their time. This was the case, for example, in the 14th century when Black Death was considered as an indication for the arrival of the Last Judgment. Posterity, however, adopted a different view. There are no witnesses of changes of epochs. The threshold to a new epoch—the German philosopher Hans Blumenberg wrote—is an ‘invisible border’.34

In 1914, for example, it was impossible for contemporaries to recognize the coherence of events. They led to the War and finally to a new world order.35 Contemporaries could hardly imagine which developments were triggered by seemingly unconnected events. They influenced the whole course of the 20th century and changed many of the most important rules of international law. The invisible character of boundaries of epochs needs particular emphasis. Nowadays we speak relatively easily of ‘new epochs’ and ‘historical moments’. The extremely rapid change of the visible world and its constant acceleration permanently reminds us that the old is incessantly replaced by the new.

Historiography of international law is insecure, for example, with respect to the significance of the end of the Cold War. Should it be regarded as the threshold to a new epoch? Or is the present still part of the era which began in 1945 with the Conference of San Francisco or even in 1919 when the partial ban on the use of force was agreed upon? After the fall of the Iron Curtain, there was a strong inclination in the discipline of international law to assume the beginning of a new period. Many regarded the changed atmosphere—the end of the struggle between the two incompatible ideologies—as a clear indication for the beginning of a new era. Many tended to think that the cosmopolitan project which was interrupted by the emergence of the totalitarian ideologies, the Second World War, and the rise of the Iron Curtain could be taken up again.36 Heinhard Steiger, for example, called the present the period (p. 1007) of transition to ‘an international law of world citizens’.37 Antonio Cassese argued that the end of the division of the world into three blocks was the decisive step into a new era with only one superpower which leads the Western countries and acts as the world's policeman.38 The main arguments of those who proclaimed the beginning of a new and more promising period consisted of the far more active role of the UN Security Council, the expansion of human rights instruments, and the emergence of new actors such as the NGOs.

These were evidently important changes. But is this enough to assume the beginning of a new period in a historiographical sense? What about other—confusing—facts such as the unauthorized attacks of NATO against former Yugoslavia, and of the United States and its allies against Iraq? It is not difficult to denounce these wars as flagrant violations of the most fundamental rules of international law. The attacks are difficult to reconcile with the predominantly optimistic view of the time since 1989. Some authors adopt the opposite view: they regard these wars as a threshold to a new and rather dark age in which the ban on the use of force is dead and the most powerful claim a right to overrule the UN Charter.39 And what about the attacks of 11 September 2001? We cannot assess whether they will be considered as the beginning of an era of asymmetrical wars between States and terrorists, or as merely momentary acts of violence. Any periodization of the present is—metaphorically speaking—skating on thin ice.

2.5.  Narrations of Progress

The question of periodization touches also upon questions of philosophy of history. Should the sequence of the periods—regarded in its entirety—reflect a ‘general pattern’ in the history of international law? Is international law developing in a certain direction which should become manifest in the periods we employ? There are four possibilities for answering the question. The first is to deny it. If history is a contingent process, one can argue, each period is a separate unit. Accordingly, there is no regularity or pattern. One can also answer in an affirmative way and assume a general development towards progress or decline. One can explain the history of international law as a ‘narrative of progress’ or as a ‘narrative of decline’. A fourth possibility is to argue that the history of international law follows a ‘cyclical’ pattern.

(p. 1008) In the discipline of international law there is a remarkable inclination towards ‘narrations of progress’. I am tempted to speak of a relatively wide consensus that ‘the present’—despite its shortcomings—should be understood as a higher stage of evolution than ‘the past’ and that the history of international law should be told accordingly. This tendency towards narrations of progress is manifest, for example, in the discipline's standard vocabulary. The aforementioned distinction of the history of international law in the two periods of ‘classical international law’ and ‘modern international law’ is telling. By employing the notion ‘modern’ to characterize the more recent period, the previous becomes implicitly the ‘pre-modern’ one—even if it is called ‘classical’ which sounds somewhat nobler. There is evidently a close connection between the semantics associated with modernity and the idea of progress. Similar considerations apply to the trend since the mid-1990s to describe important contemporary developments as part of a ‘constitutionalization process’.40 By regarding the present as the ‘period of constitutionalization’, the past automatically becomes the ‘pre-constitutional period’. Here too, it is evident that the vocabulary of constitutionalism is connected to the idea of progress. Some historians of international law make their adherence to narrations of progress even explicit. The American Douglas M Johnston, for example, distinguishes the two main periods ‘out of the mists’ and ‘into clear view’.41 He argues that humanity is capable of learning from the past.42 Most authors are less explicit. The tone, however, is often similar. Even in ‘difficult times’, there is a remarkable inclination to present the history of international law as a narrative of progress. The Dutch Cornelis van Vollenhoven, for example, divided the past and the present in 1932 into the epochs ‘period of supremacy of war’, ‘period of war and peace’, and ‘period of supremacy of peace’.43

Why is there such an inclination? Several factors play a role. They create, in their entirety, a remarkable ‘discipline optimism’ which is also reflected in the periodization decisions. The first factor is the habit of the discipline to regard the ongoing and even accelerated expansion of international law—its intrusion into fields which formerly belonged to the domaine reservé of the States—as a sign of progress. It is interpreted as an indication that state egotism loses ground and that collective interests of the world community are becoming more important. Another important factor is the discipline's interests in its own importance. A successful history of international law is also a successful history of the discipline of international law. International lawyers want to be part of a great civilizing project. They (p. 1009) are consciously or unconsciously guided by the frightening idea that there is simply no alternative to international law's success. Narrations of progress immunize the discipline to some extent against challenges of its relevance: they have a consoling effect. The third factor is the long tradition of narrations of progress in Western culture in general. It is in its core a heritage of the philosophy of history of the 18th and 19th centuries which combined belief in rationality and spiritual relicts of the Christian tradition.44 Influential philosophies of history which can be considered as decidedly optimistic are, for example, Hegel's philosophy, Marx’ historical materialism, and Comte's distinction between a theological, metaphysical, and scientific period.

2.6.  Denomination of Periods

The last topic to be discussed here concerns the question of the denomination of the periods. Should they be colourful and ‘strong’, or noncommital and ‘weak’? Strong denominations aim to catch the ‘spirit’ of an era as precisely as possible. They point directly to its ‘core’ or ‘essence’ by highlighting a key trait. Denominations such as ‘the Spanish age’ or ‘the era of the Twenty-Years Crisis’45 are strong. Strong denominations often operate with the term ‘epoch’ in order to emphasize the singularity of the respective time span and the relevance of the key trait; the notion has a noble ring and lets the period appear as a quasi-objective time unit. Weak denominations, on the other hand, are intended to remain vague or neutral. They do not ‘characterize’ the period and avoid prejudices about the facts included therein. They abstain from ambitious abstractions. Denominations such as ‘the late Middle Age’ and ‘antiquity’ are examples of colourless denominations. Similarly, a denomination such as ‘the period between 1815 and 1914’ can be called weak. Precise dates in periodizations are mostly meant as symbols for changes of epochs and should not be understood literally.46

The advantages and disadvantages of both concepts have to be balanced. Strong denominations make it easier to see the ‘big picture’. They facilitate intellectual orientation in unknown territory by providing interpretive schemes. The essence of a period labelled ‘the Spanish age’ seems more or less clear. Strong denominations provide fast insights and thereby support the organization of one's knowledge. The disadvantage, however, is that they tend to develop an independent dynamic in their own right. They often depart from the facts which had originally provided the period with its name.47 Strong denominations are not open to ambiguities and (p. 1010) multifaceted phenomena and elevate a particular aspect of a period to become the representative of the whole. Any denomination which is understood too literally becomes an obstacle to a proper understanding. Weak denominations have the advantage that they facilitate unprejudiced historiographical work. They are less ideological and more open to ambiguities and continuities. However, they do not provide the same prima facie-orientation as strong ones do. They are not as effective as ‘compasses’ in unknown territories. The cultural historian Johan Huizinga recommended weak denominations.48 He found those denominations the most helpful in practical work, the colourless and unambitious character of which is evident at first sight.49

3.  Conclusion

The question of periodization belongs to the most fundamental and most underestimated questions of historiography of international law. Periods are more than working tools as which they are often regarded in practice. Periodizations are part of our interpretation of the world and connected to our interests and values. Our socialization and our interests decide in which aspects of the past we are interested in. Periodizations reflect these interests: periodization of the past is therefore always also contemporary history. Attempts to establish new periods are attempts to reshape the present by changing the view of the past and to write a new genealogy of the contemporary world. Periodizations say as much about those who create them as about those who lived in the past. Metaphorically speaking, periodizations always have two masters—the knowledge of the past and the self-perception of the society of the historian which asks about its origins and its own role in history.50

  • Craven, Matthew, Malgosia Fitzmaurice, and Maria Vogiatzi (eds) Time, History and International Law (Martinus Nijhoff Leiden 2007).
  • (p. 1011) Grewe, Wilhelm G Epochen der Völkerrechtsgeschichte (Nomos Baden-Baden 1984).
  • Herzog, Reinhart and Reinhart Koselleck (eds) Epochenschwelle und Epochenbewusstsein (Wilhelm Fink München 1987).
  • Hueck, Ingo J ‘The Discipline of the History of International Law. New Trends and Methods on the History of International Law’ (2001) 3 Journal of the History of International Law 194–217.
  • Huizinga, Johan Wege der Kulturgeschichte (Drei Masken Verlag München 1930).
  • Kadelbach, Stefan ‘Wandel und Kontinuitäten des Völkerrechts und seiner Theorie’ (1997) Beiheft 71 Archiv für Rechts- und Sozialphilosophie 178–93.
  • Koselleck, Reinhart Vergangene Zukunft. Zur Semantik geschichtlicher Zeiten (Suhrkamp Frankfurt am Main 1989).
  • Koskenniemi, Martti ‘Why History of International Law?’ (2004) 4 Rechtsgeschichte 61–6.
  • Onuma, Yasuaki ‘When Was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilizational Perspective’ (2000) 2 Journal of the History of International Law 1–66.
  • Osterhammel, Jürgen ‘Über die Periodisierung der neueren Geschichte’ (2006) 10 Berichte und Abhandlungen der Berlin-Brandenburgischen Akademie der Wissenschaften 45–64.
  • Paech, Norman ‘Epochenwechsel im Völkerrecht? Über die Auswirkungen der jüngsten Kriege auf das UNO-Friedenssystem’ (2004) 43 Aus Politik und Zeitgeschichte 21–9.
  • Preiser, Wolfgang ‘Die Epochen der antiken Völkerrechtsgeschichte’ (1956) 11 JuristenZeitung 737–44.
  • Steiger, Heinhard ‘Probleme der Völkerrechtsgeschichte’ (1987) 26 Der Staat 103–26.
  • Steiger, Heinhard ‘From the International Law of Christianity to the International Law of the World Citizen—Reflections on the Formation of the Epochs of the History of International Law’ (2001) 3 Journal of the History of International Law 180–93.
  • Teschke, Benno The Myth of 1648. Class, Geopolitics and the Making of Modern International Relations (Verso London 2003).
  • Van der Pot, Johan Hendrik Jacob Sinndeutung und Periodisierung der Geschichte. Eine systematische Übersicht der Theorien und Auffassungen (Brill Leiden 1999).
  • Verosta, Stephan ‘Regionen und Perioden der Geschichte des Völkerrechts’ (1979) 30 Österreichische Zeitschrift für Öffentliches Recht und Völkerrecht 1–21.

Footnotes:

1  K Pomian L’ordre du temps (Gallimard Paris 1984) at 162.

2  For the development of the notion ‘period’ cf M Kranz ‘Periode, Periodisierung’ in J Ritter and K Gründer (eds) Historisches Wörterbuch der Philosophie (Schwabe und Co Basel 1989) vol 7, 259–62.

3  J Jankowski ‘Egyptian Responses to the Palestine Problem in the Interwar Period’ (1980) 12 International Journal of Middle East Studies 1–38.

4  VP Nanda ‘Self-determination and Secession under International Law: Validity of Claims to Secede’ (2001) 29 Denver Journal of International Law and Policy 305–26.

5  M Koskenniemi The Gentle Civilizer of Nations. The Rise and Fall of International Law 18701960 (CUP Cambridge 2002).

6  For a more detailed analysis cf GRB Galindo ‘Martti Koskenniemi and the Historiographical Turn in International Law’ (2005) 16 European Journal of International Law 539–59 at 552–3.

7  For the role of ‘narrations of progress’ in historiography of international law cf Section 2.5.

8  J Osterhammel ‘Über die Periodisierung der neueren Geschichte’ (2006) 10 Berlin-Brandenburgische Akademie der Wissenschaften. Berichte und Abhandlungen 45–64 at 46.

9  In general historiography, the periodization-concept of the ‘longue durée’ (long term) by the French Annales School is an illustrative example. Cf F Braudel ‘La longue durée’ (1958) 13 Annales d’histoire économique et sociale 725–53.

10  KH Stierle ‘Renaissance—Die Entstehung eines Epochenbegriffs aus dem Geist des 19. Jahrhunderts’ in R Herzog and R Koselleck (eds) Epochenschwelle und Epochenbewusstsein (Wilhelm Fink München 1987) 453–92 at 453.

11  JG Droysen Texte zur Geschichtstheorie (Vandenhoek & Ruprecht Göttingen 1972) at 20.

12  HG Gadamer Wahrheit und Methode (Mohr Tübingen 1986) at 142.

13  Section 2.1 of this chapter deals with the question of ‘conventional periodizations’ in the historiography of international law.

14  F Graus ‘Epochenbewusstsein—Epochenillusion’ in Epochenschwelle und Epochenbewusstsein (n 10) 531–3 at 532.

15  O Boutkevitch ‘Les origines et l’évolution du droit international selon l’historiographie soviétique’ (2004) 6 Journal of the History of International Law 187–207 at 187.

16  TO Elias Africa and the Development of International Law (AW Sijthoff Leiden 1972).

17  C Cellarius Historia universalis in antiquam et medii aevi ac novam divisa (Jena 1704–8).

18  For critical reflections on these periodizations cf H Steiger ‘From the International Law of Christianity to the International Law of the World Citizen—Reflections on the Formation of the Epochs of the History of International Law’ (2001) 3 Journal of the History of International Law 180–93.

19  For criticism of periodizations emphasizing historical turning points see IJ Hueck ‘The Discipline of the History of International Law’ (2001) 3 Journal of the History of International Law 194–217 at 197.

20  R Koselleck ‘Das achtzehnte Jahrhundert als Beginn der Neuzeit’ in Epochenschwelle und Epochenbewusstsein (n 10) 269–82 at 278.

21  On the questions connected with descriptions of ages and power structures, cf M Gamper and P Schnyder (eds) Kollektive Gespenster. Die Masse, der Zeitgeist und andere unfassbare Körper (Rombach Freiburg im Breisgau 2006).

22  M Mandelbaum The Problem of Historical Knowledge (Harper and Rowe New York 1967) at 312.

23  ‘Das achtzehnte Jahrhundert als Beginn der Neuzeit’ (n 20) at 269.

24  ‘The Discipline of the History of International Law’ (n 19) at 198.

25  On the question of continuities cf S Kadelbach ‘Wandel und Kontinuitäten des Völkerrechts und seiner Theorie’ (1997) Beiheft 71 Archiv für Rechts- und Sozialphilosophie 178–93.

26  J Burckhardt Die Cultur der Renaissance in Italien. Ein Versuch (Schweighausersche Verlagsbuchhandlung Basel 1860) at 1–2.

27  ‘Das achtzehnte Jahrhundert als Beginn der Neuzeit’ (n 20) at 272.

28  For a survey of the authors who adopted Grewe's concept of periodization, cf ‘The Discipline of the History of International Law’ (n 19) at 196; on the background and the ideas underlying Grewe's work cf B Fassbender ‘Stories of War and Peace. On Writing the History of International Law in the “Third Reich” and After’ (2002) 13 European Journal of International Law 479–512.

29  W Preiser ‘Die Epochen der antiken Völkerrechtsgeschichte’ (1956) 11 JuristenZeitung 737–44.

30  A Truyol y Serra Histoire du droit international public (Economia Paris 1995) at 5.

31  Africa and the Development of International Law (n 16) 3–33.

32  S Verosta ‘Regionen und Perioden der Geschichte des Völkerrechts’ (1979) 30 Österreichische Zeitschrift für Öffentliches Recht und Völkerrecht 1–21; S Verosta ‘Die Geschichte des Völkerrechts’ in A Verdross Völkerrecht (Springer Wien 1964) 31–62.

33  R Koselleck Vergangene Zukunft (Suhrkamp Frankfurt am Main 1989) at 145.

34  H Blumenberg Aspekte der Epochenschwelle (Suhrkamp Frankfurt am Main 1976) at 20.

35  Vergangene Zukunft (n 33) 145.

36  M Koskenniemi ‘Why History of International Law?’ (2004) 4 Rechtsgeschichte 61–6 at 63.

37  ‘From the International Law of Christianity’ (n 18) 183.

38  A Cassese International Law (OUP Oxford 2005) at 44.

39  N Paech ‘Epochenwechsel im Völkerrecht? Über die Auswirkungen der jüngsten Kriege auf das UNO-Friedenssystem’ (2004) 43 Aus Politik und Zeitgeschichte 21–9 at 24.

40  Cf eg B Fassbender The United Nations Charter as the Constitution of the International Community (Martinus Nijhoff Leiden 2009); J Klabbers, A Peters, and G Ulfstein (eds) The Constitutionalization of International Law (OUP Oxford 2009).

41  DM Johnston The Historical Foundations of World Order. The Tower and the Arena (Martinus Nijhoff Leiden 2008) at 143–319 and 321–772.

42  Explicitly ibid (n 41) xvii.

43  C van Vollenhoven Du droit de paix. De jure pacis (Martinus Nijhoff The Hague 1932).

44  Vergangene Zukunft (n 33) 33.

45  Named after the classical work by EH Carr The Twenty Years Crisis (Macmillan London 1939).

46  ‘Das achtzehnte Jahrhundert als Beginn der Neuzeit’ (n 20) 269.

47  ‘Renaissance’ (n 10) 453.

48  J Huizinga Wege der Kulturgeschichte, (Drei Masken Verlag München 1930) at 76.

49  Interestingly, Huizinga did not always take his own recommendation seriously: J Huizinga The Autumn of the Middle Ages (E Arnold & Co London 1924); original Dutch title: Herfsttij der middeleeuwen.

50  K Schreiner ‘Diversitas Temporum’ in Epochenschwelle und Epochenbewusstsein (n 10) 381–428 at 383.