Formalization and Deformalization as Narratives of the Law of War

Abstract

This paper points to the intimate relationship between international legal writing and history. It typifies modes of engagement with history in international law in order to contrast, rather impressionistically, a traditional approach with a set of present-day critiques. It proposes that the distinction between professional historiography and legal work proper is in some way misleading: while there are significant differences in terms of their respective objectives and styles, legal work inevitably requires a positioned engagement with the past, thus producing (or contributing to the production of) historical knowledge (Sect. 4.2). Second, it argues that modern international law histories tend to share specific, albeit often unregistered, assumptions about the past that raise unsettling questions about the legitimacy of the axiomatic narratives of the discipline (Sect. 4.3). Third, it samples some alternative modes of engagement with history as evidenced in the ‘‘historical turn’’ and, in particular, in Critical histories of recent years (Sect. 4.4). The closing section identifies some starting points for reckoning with the role of history in international law work (Sect. 4.5). The