International Law in a "New Medievalism"

Abstract

On an overall level, this text is about “international orders” – in the past, present and future. More specifically, it is a paper on (i) the transformation of the contemporary “international order” – which was “acknowledged” by the Peace of Westphalia (1648) and encapsulated the idea of a “society of states” (Armstrong 2011: 42); and (ii) some of the implications this transformation – commonly referred to as “globalisation” – may have on (future) international law, which is recognised as one of the fundamental institutions of the modern or Westphalian “international society” (cf. Baaz 2009). Is “globalisation” – which is simply understood as “the widening, deepening and speeding up of worldwide interconnectedness” – bringing about the decline of the sovereign nation states as global agents, and challenging the ability of governments to control their own economies, politics as well as law-making and enforcement? Or is the globalisation discourse merely “globaloney”? Will the states and “geopolitics” continue to be the key agents and forces that shape the international order and international law?
The point of departure for this paper is somewhat different. It approaches these issues from a “historical” and “transformalist” perspective and argues that (i) neither contemporary international society nor a future alternative order could be understood in “isolation”, but rather need to be dealt with as the result of a multi-facetted process that is played out over time; and (ii) both the “hyper-globalists” and “sceptics” alike overstate their arguments and, by consequence, misunderstand not only contemporary international politics, but also the future structure, fundamental institutions and pattern of relations among states and other agents – not least the nature and role of (international) law (McGrew 2011: 16; Heywood 2014: 9-13). In this paper, a particular interest is devoted to the Middle Ages and the idea of a “new medievalism” – an idea that, it will be argued further below, could help us to better understand the current processes of simultaneous globalisation and fragmentation.

Full text

International Law in a “New
Medievalism”
Mikael Baaz
1
Introduction ……………..……………..………………................
118
2
International Orders ……………..……………..………….…….
118
3
The English School of International Relations and the
Concept of “International Order” ……………..……………..…
119
4
The Middle Ages ……………..……………..……………….……
122
5
The Expansion of the European International Society …….…..
125
6
The End of the Cold War, Globalisation and the
“War on Terror” ……………..……………..…………...…….…
126
7
A New Medievalism ……………..……………..………………....
132
8
International Law in a New Medievalism: Legal
Pluralism and Hybridity ……………..……………….…….…...
136
9
Concluding Remarks ……………..……………..……...…..……
139
References ……………..……………..……………..…….………
141

118 Mikael Baaz: International Law in a “New Medievalism”
1 Introduction*
And in today already walks tomorrow
(Samuel Taylor Coleridge, quoted in Heywood 2014: 533).
On an overall level, this text is about “international orders” – in the past,
present and future. More specifically, it is a paper on (i) the transformation of
the contemporary “international order” – which was “acknowledged” by the
Peace of Westphalia (1648) and encapsulated the idea of a “society of states”
(Armstrong 2011: 42); and (ii) some of the implications this transformation –
commonly referred to as “globalisation” – may have on (future) international
law, which is recognised as one of the fundamental institutions of the modern
or Westphalian “international society” (cf. Baaz 2009). Is “globalisation” –
which is simply understood as “the widening, deepening and speeding up of
worldwide interconnectedness” – bringing about the decline of the sovereign
nation states as global agents, and challenging the ability of governments to
control their own economies, politics as well as law-making and enforcement?
Or is the globalisation discourse merely “globaloney”? Will the states and
“geopolitics” continue to be the key agents and forces that shape the
international order and international law?
The point of departure for this paper is somewhat different. It approaches
these issues from a “historical” and “transformalist” perspective and argues
that (i) neither contemporary international society nor a future alternative order
could be understood in “isolation”, but rather need to be dealt with as the result
of a multi-facetted process that is played out over time; and (ii) both the
“hyper-globalists” and “sceptics” alike overstate their arguments and, by
consequence, misunderstand not only contemporary international politics, but
also the future structure, fundamental institutions and pattern of relations
among states and other agents – not least the nature and role of (international)
law (McGrew 2011: 16; Heywood 2014: 9-13). In this paper, a particular
interest is devoted to the Middle Ages and the idea of a “new medievalism” –
an idea that, it will be argued further below, could help us to better understand
the current processes of simultaneous globalisation and fragmentation.
2 International Orders
There are several ways to categorise the general structure and pattern of
relations among “distinct” political entities. At one endpoint, on a hypothetical
continuum, we might picture a state of bellum omnium contra omnes, in which
war, conquest and the slaughter or enslavement of the defeated are the only
forms of contact between these entities. At the other endpoint, we could
* The financial support by the Swedish Research Council −which has allowed me to
undertake research within a programme that is entitled The Globalization of Resistance:
Influences on Democracy Advocators in Civil Society in the South (project no. 2010-2298)−
is gratefully acknowledged.

Mikael Baaz: International Law in a “New Medievalism” 119
imagine a world government, in which the individual societies retain their
differences based on features such as language, culture and/or religion but their
political and legal freedoms are no greater than, for example, the individual
states of the United States. Between these two endpoints we find the many
forms of interaction that have existed in different times and places throughout
world history. These forms range from “empires”, which themselves could be
more or less tightly organised, via various kinds of hierarchical orders (such as
“suzerainty”), to different “international systems” of various geographical
range that are organised on the basis of sovereignty of the constituent members
(Armstrong 2011: 36; see also Baaz 2009; Watson 1992).
Generally speaking, David Armstrong (2011: 36) argues, the concept of
“international society” could be applied to describe any modes of interaction
between distinct societies that are governed, to some degree, by common rules
and practices. Yet, it is most often applied more narrowly, referring to, on the
one hand, a specific historical narrative and, on the other hand, a theoretical
approach – the “English School of International Relations” – that is partly
derived from this narrative (see e.g. Baaz 2009, 2013; Bull [1977] 1995); Bull
and Watson 1984; Butterfield and Wight 1966; Watson 1992; Wight 1977,
[1946] 1978, 1991). The narrative concerns the emergence and evolution of the
European society of states from the complex medieval order that preceded it.
The European “society of states” or “international society” was founded on the
common interests of its members to protect sovereignty as well as a set of
common values – a “standard of civilization” – that distinguished the members
of this inner circle from those outside it. Within the inner circle, the members
“conceive themselves to be bound by a common set of rules in their relations
with one another, and share in the working of common institutions” and
principles (Bull [1977] 1995: 13). Outside the inner circle, those societies
considered “uncivilised” could be subject to different means of control or
domination, reaching from “capitulations” to outright colonisation (Armstrong
2011: 36; Baaz 2009: 68-69; Bull [1977] 1995: 13; Cassese 2001: 22-23;
Heywood 2014: 28).
3 The English School of International Relations and the Concept
of “International Order”
In general, Robert Jackson (2009: 21-22) argues, the English School of
International Relations could be thought of as form of “classical humanism”
that focuses on human relations. The approach seeks to “discern, clarify and
elucidate human conduct: that is, human activity that is assessed by reference
to normative standards of some kind”, rather than to “discover patterns of
social behavior, conceived as an objective external reality and to explain that
reality in terms of falsifiable empirical propositions”. From this follows, that,
“[t]here can be no positivist explanations of human conduct … There can only
be history, jurisprudence and related modes of understanding, interpreting, and
elucidating its character and modus operandi” (italics in original).

120 Mikael Baaz: International Law in a “New Medievalism”
The chief concept and distinctive marker of the English School is, as
indicated above, the concept of “international society”; traditionally understood
as:
… a group of states (or, more generally, a group of independent political
communities) which not merely form a system, in the sense that the behaviour
of each is a necessary factor in the calculations of the others, but also have
established by dialogue and consent common rules and institutions for the
conduct of their relations, and recognise their common interest in maintaining
these arrangement” (Bull and Watson 1984: 1).
It is thus possible to separate the concepts “system” and “society”. If this is
done, it is clear that the concept (international) “system” is the more basic one
and that it precedes (international) “society”. International order could then be
understood as the pattern of behaviour that maintains the fundamental values of
international society.
The approach is “historical” as well as “transformalist” and holds that
contemporary international society, at least at the global level, has “developed
from a more rudimentary international system that expanded and evolved over
time” (Green 2014: 1; cf. Bull and Watson 1984). Even though, the societal
element has increased over time, contemporary international society is still best
thought of as an “anarchical society” (Bull [1977] 1995): that is, even though
there exists no superior authority (anarchy), there exists a system of “rules”
(including international law) that the states (as well as other agents) apply in
their mutual relations (society) (see further Baaz 2009:13).
In addition to the more general account of history, the English School has
also focused on the main “institutions” of international society – (i) the balance
of power; (ii) international law; (iii) diplomacy; (iv) the managerial system of
great powers; and (v) war, as well as sovereignty (including non-intervention)
and territoriality – and, in particular, the role of these institutions in
maintaining order in international society. The approach has, however, also
defended an ethical and normative dimension of international relations – one
that questions tensions between different values in international society,
including “order” vs. “justice” and/or “pluralism” vs.
“solidarism/universalism” (Baaz 2013; see also Bull [1977] 1995: Ch. 4;
Butterfield and Wight 1966: 12; Buzan 2014: 98–99; Cochran 2014; Green
2014: 1; Jackson 2009; Keene 2014: 175–178).
In order to make the somewhat abstract concept of international order more
functional, Björn Hettne (2009) suggests that it should be operationalized along
three dimensions: (i) “structure”; (ii) “governance”; and (iii) “legitimacy”. A
(thorough) transformation in one or several of these dimensions means that the
international order and, by extension, the international society transforms.
The structure – which is the simplest and most traditional way to
characterise the international power structure (polarity) – can be (i) unipolar;
(ii) bipolar; or (iii) multipolar. The governance, which should be distinguished
from the structure, can, analytically speaking, be (i) unilateral; (ii) bilateral;
(iii) plurilateral (with regional governance as a special case); and (iv)
multilateral. A plurilateral form of governance is understood as a form where

Mikael Baaz: International Law in a “New Medievalism” 121
several but not all agents are represented. A version of this form is the regional
one, where membership in the decision-making bodies is dependent on
geography (e.g. the European or African Union). A multilateral form of
governance is a political form in which all potential agents are included, or at
least could be included if they accept the rules connected to membership. The
United Nations is commonly assumed to be a multilateral form of governance.
However, in practice it is plurilateral, since the system is controlled by the five
victorious powers of the Second World War (today: the United States, Russia,
China, the United Kingdom and France). Put somewhat differently,
plurilateralism is a form of a “managerial system of great powers” (cf. Bull
[1977] 1995: Ch. 9). A unilateral form is understood as a decision-making
form in which one agent is acting in a one-sided manner. A bilateral order is,
by consequence, an order consisting of two parties. Finally, Legitimacy can
vary from strict legality to full anarchy (i.e. an order in which the national
interest rules completely). Alternatives in-between the two endpoints are more
or less legitimate or morally justifiable, multilateral, plurilateral or regional
“interventions” on various grounds (Baaz 2009: 32-33; Buzan 2004: Ch. 3;
Hettne 2009: 15-16).
On the international level, the question about legitimacy is often connected
to another fundamental idea, namely: “hegemony”. Ultimately, this concept is
about how to make an order “ordered”. A well-functioning system requires
some sort of underlying political and/or social order. Put simply, there must be
a set of rules followed by the agents that are included in the system. It is this
compliance that constitutes the foundation for the order. Hegemony is a
multidimensional and subtle form of power that is put in place to maintain a
system that includes the acceptance of the “dominated” as an element in the
exercise of power. Hence, hegemonic power is, unlike pure dominance (i.e.
empire), considered legitimate. Some scholars argue that an ordered
international order requires a hegemonic power, which stands as a guarantor
for the system of rules. This idea is known as the “thesis of hegemonic
stability” (Baaz 2009: 33-34; Hettne 2009: 16-17; Heywood 2014: 17, 236).
The concept of international order thus contains structural as well as
ideational elements, but also different material interests, political relations,
military capability and discursive control as well as other relations of
governance (and, as we will see further below, resistance) (see e.g. Armstrong,
Farrell and Maiguashca 2003). It summarises the formal and informal system
of rules and principles that gives certain conformity to international law and,
by extension, predictability to international relations.
If the concept of (international) order is contextualised and operationalized,
as briefly suggested above, it could serve as a “theoretical frame” for not only a
better understanding of (international) order – in the past, present and future –
but also for understanding transformations within a particular order and
transformations from one order to another, as well as the development and
transformations of individual institutions.

122 Mikael Baaz: International Law in a “New Medievalism”
4 The Middle Ages
Western Europe is, as indicated above, considered to be the birthplace of the
territorial state (as we know it today). The year of this birth is, by tradition,
considered to be 1648, the year of the Peace of Westphalia, which ended the
Thirty Year’s War. The (Western) European society of states, which came to
replace the earlier “medieval order”, was however long in the making. In fact,
the Westphalian order began to be constructed as early as the fifteenth and
sixteenth centuries and was not completed until the eighteenth and nineteenth
centuries (Hettne 2009: 12; Heywood 2014: 27; Jackson and Owens 2005: 52).
The medieval era in Western Europe lasted for some thousand years,
roughly between the years 500 and 1500. It is often described as a Respublica
Christiana: that is, a universal society founded on a dual structure of religious
authority (sacredotium) and political authority (regnum) that gave at least a
minimum of unity and organisation to the people living in Europe, regardless
of what their language or homeland happened to be. Even though it was this
political order that was recognised formally in contemporary political theory,
medieval Europe was in practice fragmented and decentralised along feudal
lines – at a local as well as a regional level of society. The basic characteristics
of feudalism – which here is understood as a political rather than an economic
order – were reciprocity and contractual relationships between those in power
at different levels of society. Put somewhat differently, feudalism was made up
by an intricate web of different “patron–client relationships” (Hettne 2009: 38;
Jackson and Owens 2005: 50-51).
Already in the middle of the medieval period – following the formal
division of the Roman Empire (in 395) and, by extension, the schism between
the Roman Catholic Church and the Greek Orthodox Church – the idea of a
“universal” Christianity was in practice non-existent. In 1054, the schism,
which then had escalated for centuries, turned irreversible. From now on, it
makes sense to speak about two different religions as well as two different
political orders (in the making) – one in Western Europe and another one in
Eastern Europe (Hettne 2009: 39). While Eastern Europe continued to be
organised as an empire (Byzantium, which lasted until 1453), Western Europe
was much more loosely organised. Over and above, Western Europe was
characterised by several, partly overlapping, levels of authority and multiple
loyalty (Bull [1977] 1995: 245).
The Catholic Church, which was represented by the Papacy, was originally
the only “association” that maintained some sort of “universalism” in Western
feudal Europe. And it was accordingly the Church – who claimed to have
inherited the universal authority of the Roman Empire – that came to define
Western Europe from the beginning. To back up its claim, the Catholic Church
created an extensive political and legal order, comprising of a system of
sanctions (ultimately the threat of excommunication, but also fines and/or
public penance), the use of arbitration, formal legal hearings and numerous
specific laws – so called canon law. The Church also elaborated the most
systematic doctrine to date on jus bellum iustum. The doctrine, however, was
only applicable on Christian subjects. Despite what has been argued above, it

Mikael Baaz: International Law in a “New Medievalism” 123
should be emphasized that the role of the Church was mainly conceptualised in
terms of its authority, not in terms of power (Armstrong 2011: 40).
To a certain extent, the imperial power was resurrected in Western Europe
as a “political project” when Pope Leo III crowned Charlemagne as the Roman
Emperor in 800. The Catholic Church was in need of protection and the
Emperor in need of legitimacy. In 962, Otto I was crowned Emperor and by
this, the European “imperial project” was transformed into a German rather
than a Frankish one. The dualism between the religious and the political was –
on a general level – characteristic for the Western European civilisation during
the Middle Ages, at least until the Late Middle Ages (1300–1500) (Hettne
2009: 42-43).
The Late Middle Ages was a period of fragmentation and dissolution, and
from the late-fifteenth century onwards it is possible to discern the emergence
of a new political structure in Western Europe, following not only a
fragmentation of the imperial power and subversion of the Church (due to the
Protestant Reformation), but also the centralisation of political power to
different regional territories in Western Europe – in, for example, what we
know today as England, Spain, the Habsburg Monarchy and the Netherlands,
as well as Sweden and Denmark. It was this political power centre, the
territorial or the nation state – sandwiched between the “universal” and the
feudal – that would eventually become the very foundation for the European
international society and, roughly speaking some five hundred years later, the
current global society of states, with some 200 members (Hettne 2009: 43-44).
In addition to the above, it is also worth noting that a number of cities –
which were primarily located in the northern and central Italian peninsula, as
well as around the Baltic and North Sea (the Hanseatic League, which was a
defensive and commercial confederation of merchant guilds and their market
towns) – developed into powerful city-states during the Middle Ages. It was in
Florence, one of the Italian city-states, that Niccolò Machiavelli (1469–1527)
developed the idea of the primacy of the national interest (raison d'État). In
this regard, Machiavelli was truly “modern”; his ideas would simply have been
unthinkable in a medieval context. The intellectual foundation underlying the
European international society, based on a system of autonomous states, is thus
traceable back to Renaissance Italy (Jackson and Owens 2005: 51-52;
Heywood 2014: 27).
The transformation from the old to the new political order in Europe – from
a pre-Westphalian order to a Westphalian one – was not only turbulent, but it
was also violent. The transformation peaked with the outbreak of the Thirty
Years’ Wars in 1618, which to a certain extent was a German civil war
between Protestants and Catholics. It was also, however, a German civil war
about constitutional matters between the Emperor – who wanted to centralise
power – and his subjects – the different political entities that constituted
“Germany” and who fought for their independence. In addition, it was an
international war between France and the Habsburg Monarchy, between Spain
and the Netherlands, in which the monarchs of Sweden and Denmark also
participated. All the external parties also had allies within Germany (see
further Hettne 2009: 48-49; Palmer and Colton 1965: 111-119)

124 Mikael Baaz: International Law in a “New Medievalism”
During the Thirty Years’ War, several moderate Catholic and Protestant
thinkers entered the scene; the lowest common denominator of them was that
they believed that religion was allowed to play far too great a role in lives of
people. No faith, it was argued, was important enough to justify a perpetual
war, and that after all there might be space for two churches in Western
Europe. First of all people now lived in nation states and not in the Church, and
what was needed, more than anything else, it was argued, was political stability
(or order), internal as well as external (Olson and Groom 1991). Among these
prominent thinkers, Hugo Grotius (1583–1645) stands out.
Grotius, who was a diplomat and (legal) philosopher from the Netherlands,
in a way forms a link between the old vertical and the emerging horizontal
political order discussed above (Hettne 2009: 45-46). In his classic book, De
Jure Belli ac Pacis Libri Tres (eng. On The Law of War and Peace), which was
written in 1625, Grotius deals with the legality of war – more specifically, how
to restrict war and expand peace by developing standards of conduct that are
insulated against religious doctrines and therefore able to govern the relations
of independent states, both Catholic and Protestant (Jackson and Owens 2005:
54).
The ideas of Grotius had – at least in theory – a great impact on the
international order that was established at the Peace of Westphalia in 1648. The
Peace Treaty was, put simply, based on three principles: (i) rex est imperator in
regno suo (the king is emperor in his own realm); (ii) cuius regio eius religio
(the ruler determines the religion of his realm); and (iii) the balance of power.
These principles (gradually) replaced the medieval Respublica Christiana.
They established the legal basis of modern statehood and, by consequence,
became considered to constitute the “constitution” of modern international
politics (Jackson and Owens 2005: 54).
Even though the Peace of Westphalia encapsulated the system of sovereign
states in Europe, it should be noted that the territorial or nation states that
emerged out of the wreck of feudalism were from the beginning “absolutist”
and not modern. The legitimacy of the absolutist state, Christian Reus-Smit
(1999: 8-9) maintains, rested on a distinctly pre-modern set of Christian and
dynastic constitutional values. For almost two hundred years after the Peace of
Westphalia, the preservation of a divinely ordained, strictly hierarchical
political and social order constituted the very justification of the sovereign
state. In order to preserve this order, God had given the European monarchs
supreme authority – bound by divine and natural law only. The monarchs were
thus ruled by few restrictions and their commands constituted the sole basis of
legitimate law. These meta-values contributed to the shaping of the
institutional practices that were developed between absolutist states, informing
the institutions of naturalist international law and old diplomacy. These values
also came to serve as strong barriers to the development of modern institutions
– in particular “contractual” international law and multilateralism (see further
Reus-Smit 1999: Ch. 5).

Mikael Baaz: International Law in a “New Medievalism” 125
5 The Expansion of the European International Society
However, the importance of individual historical events such as the Peace of
Westphalia should not, Hettne (2009: 50) correctly argues, be exaggerated.
Fundamental societal transformations seldom occur at a certain time, nor are
the actors who are participating in a historical event aware of the long-term
consequences of their actions. A societal transformation is often rather the
result of a multi-facetted process that is played out over time (not always, but
quite often reflecting the original intentions of the participating actors in a
rather poor manner). But a transformation is nevertheless often manifested by a
single event, which helps to make the process more tangible to the present by
way of individual events that appear to form a pattern in which the individual
event is one of several other events in a large and complex puzzle. At the same
time, the history of events is not unimportant, but events do need to be
contextualised. The decision as to which events are eventually made symbols
for a disclosed transformation is dependent upon, among other things, the
relative consensus that is reached by leading scholars and other specialists.
What is it then, in a historical perspective, that is considered to be
fundamental to the Westphalian political order that evolved from 1648
onwards? The European society of states had, as Robert H. Jackson and
Patricia Owens (2005: 54-55) display, several noticeable characteristics: (i) it
was made up by member states whose political independence and juridical
equality was acknowledged by international law; (ii) each member state was
considered legitimate in the eyes of the other member states; (iii) the relations
between the sovereigns (international relations) were, in an increasing degree,
managed by professionals within a multilateral system of diplomacy; (iv) the
religion of international society was Christian – but that was gradually
indistinguishable from the culture, which was “European”; and (v) a balance of
power between the states, which was intended to prevent any one sovereign
state from making a bid for hegemony. By this, the first fully articulated
conception of the theory of international society as an explicit treaty with a
political and legal foundation was constructed in Europe among its sovereign
states. There thus seems to be strong evidence that modern international
society is rooted in the political thought and political culture of the European
peoples.
From the late-eighteenth century onwards, the sovereign state became,
Reus-Smith (1999: 9) argues, increasingly identified with the augmentation of
individuals’ purposes and potentialities, not least in the economic sphere. Once
the legitimacy of the state was defined in these terms, the absolutist principle
that the formulation of laws was the sole preserve of the monarch lost all
legitimacy. Step by step, a new legislative principle of procedural justice
developed. Rightful law was considered to have two main characteristics.
Primo, it had to be authored by those subject to it. Secundo, the law had to be
equally binding on citizens, in all like cases. The earlier principle(s) of
legislation was thus ousted by the legislative codification of formal,
reciprocally binding treaties. Beyond the 1850s, the legislative principle of
“procedural justice” informed the paired development of the two fundamental
institutions of contemporary society: contractual international law and

126 Mikael Baaz: International Law in a “New Medievalism”
multilateralism or, perhaps more correct, plurilateralism. The principle that
legal rules should be authored by those subject to them came to license a
plurilateral form of governance and legislation, while the precept that rules
should be equally applicable to all subjects, in all like cases, warranted the
formal codification of contractual law, to ensure the universality and
reciprocity of international regulations (see further Reus-Smit 1999: Ch. 6).
Considering the above, the (global) expansion of the Westphalian political
order is best understood as a coherent and dynamic historical process that
began in the fifteenth century and only came to an end in the twentieth century.
The transformation started with the centralisation of political power in
medieval, feudal Europe and continued with the development of a European
society of states and, by extension, European control and domination of the rest
of the world. The European empires were eventually dissolved and the colonies
transformed into nation states, which were modelled on their European
predecessors. The globalisation of the nation state is thus related to the
European colonisation of the rest of the world, as well as the latter process of
de-colonisation, which dramatically increased the number of states in the world
(see further e.g. Jackson and Owens 2005: 56-57; Heywood 2014: 36-38).
The final act of European de-colonisation, which completed the
globalisation of international society, was the end of the “Cold War” –
understood as (i) a wider opposition between two material civilizations both of
which insisted that they represented the future; (ii) a strategic confrontation
between the United States and the Soviet Union; (iii) an ideological clash
between capitalism and communism; (iv) a geographical and military
confrontation that kept Germany and Europe divided for more than four
decades; and (v) an on-going struggle for the control of the Third World – and
the following collapse of the Soviet Union. During the 1990s, for the very first
time in history, there was now one inclusive international society of global
extent. The collapse of the Soviet Union together with the simultaneous
dissolution of states such as Yugoslavia, Czechoslovakia and Ethiopia, as well
as the subsequent state formations during the twenty-first century, have
increased the current number of states to some 200 (Cox 2005: 133; Hettne
2009: 65; Jackson and Owens 2005: 56-58).
6 The End of the Cold War, Globalisation and the “War on
Terror”
The end of the Cold War, like the Peace of Westphalia some 350 years earlier,
is an important historical event, which, among other things, marks the end of
the chiefly bipolar structure, which was based on superpower rivalry between
the United States and NATO, on the one hand, and the Soviet Union and the
Warsaw Pact that had defined the international society since the end of the
Second World War, on the other. The end of the Cold War also enforced a
redefinition of the raison d'État on most, not to say all, states and in some
cases a reshaping of the states themselves as well as new or at least modified
roles for international organisations and bodies, such as the United Nations

Mikael Baaz: International Law in a “New Medievalism” 127
Security Council and the European Union. In short, the end of the Cold War
came to mean profound changes in the international society, at the system
level, in international organisations and at the level of the nation state (Crockatt
2005: 112; Heywood 2014: 223-226).
If the Cold War period was characterised by a distinct and sharp divide
between opposing ideologies and socio-economic system, the post-Cold War
1990s could be described as a period where states were compelled to play by a
single set of rules towards and within an increasingly integrated world
economy, that was based on a neo-liberal economic orthodoxy (the Washington
Consensus) (see further Heywood 2014: 93-100). The concept that was most
frequently used to describe this new international order was, as we now know,
“globalisation”; a concept that was barely used before 1989, but which during
the 1990s came to be increasingly employed to define world politics (Cox
2011: 69).
Globalisation is, as indicated briefly above, characterised by: (i) a
“stretching of social, political, and economic activities across political frontiers
so that events, decisions, and activities in one region of the world come to have
significance for individuals and communities in distant regions of the globe”;
(ii) “the intensification, or the growing importance, of interconnectedness, in
almost every sphere of social activity, from the economic to the ecological,
from the activities of Apple to the spread of dangerous diseases”; and (iii) “the
accelerating pace of global interactions and processes as the evolution of
worldwide systems of transport and communication increases the … velocity
with which ideas, news, goods, information, capital and technology move
around the globe” (McGrew 2011: 18).
Following (the acceleration of) globalisation it has, among other things,
become more and more difficult to uphold the idea of politics that is performed
out in two relatively separate spheres – the domestic and the international –
inhabited by different actors, interacting according to different logics and rules
and with different agendas. A new international or, perhaps more correct,
global or world order is developing and with it a distinct form of “global
politics”. The concept “global politics” – which is simply understood as
politics on the global level referring all elements within a system and not only
to the system as a whole – could help us to understand the global structures and
processes of rulemaking, problem solving, the maintenance of order, as well
the promotion of justice in the global system. Under conditions of
globalisation, states are becoming increasingly embedded in thickening and
overlapping “worldwide webs” – i.e. webs of: (i) multilateral institutions and
politics (from the United Nations to the World Bank); (ii) transnational
associations and networks (from the American Society of International Law to
the World Muslim Congress); (iii) global policy networks of officials,
corporate and non-governmental actors, dealing with various global issues; as
well as (iv) formal and informal trans-governmental networks of government
officials dealing with shared global issues (McGrew 2011: 24-25; Heywood
2014: 2-3).
The concept of global politics also implies the emergence of a (fragile)
global polity, within which “interests are articulated and aggregated, decisions
are made, values allocated and policies conducted through international or

128 Mikael Baaz: International Law in a “New Medievalism”
transnational political processes” (Ougaard 2004: 5, quoted in McGrew 2011:
25). An important question in this regard is if global politics and global polity
also imply “global law”. We will return to this crucial question further below,
but first some more on global politics and policy.
Since the creation of the United Nations in 1945, a substantial web of global
and regional agencies has developed, which is progressively linked to the
proliferation of non-governmental organisations and social movements that are
seeking to influence the governance of global affairs. While the idea of a world
government remains utopian an evolving “global governance complex”, which
embraces states, international organisations, transnational networks and other
agencies, and functions with variable effect in order to promote and/or
intervene in the common affairs of humanity, is a reality today (McGrew 2011:
25; Heywood 2014: 7, 464-466).
This evolving “global governance complex” comprises the large quantity of
formal and informal structures of political coordination between governments,
inter-governmental and transnational agencies, public and private alike, and
has been developed to realise collectively agreed goals as well as common
purposes through the making or implementation of global, international or
transnational rules. Over recent decades, non-governmental and private
agencies (such as Standard and Poor’s and Moody’s) have become increasingly
influential in the formulation and implementation of “global public policy”. In
addition to this relocation of authority from states to private agencies, the last
few decades have also witnessed the development of an (embryonic)
“transnational civil society” (McGrew 2011: 26-27): that is, a political space
where associations of citizens seek to – from outside international society and
the global market – influence global governance and shape global public policy
(this definition is inspired by Jan Aart Scholte; via a private conversation with
the author in 2012). Transnational civil society, neither as a theoretical concept
nor as a political space, is not yet particularly well theorised. On a very general
level, however, it is possible to think of the global governance complex as
carrying out “politics from above” and the transnational civil society as
performing “politics of resistance”. Put simply, the politics from above −“the
politics of governance”− is associated with efficient maintenance and
reproduction of a hegemonic or dominant system. It includes various
structures, agencies (including, it should be admitted, various transnational
civil-society agents) and processes. Supporters of these arrangements consider
them to bring some sort of order (and justice) to world politics, particularly in
the context of globalisation. The “politics of resistance”, on the other hand, is
transformative in nature and seeks to develop (more just) alternatives to the
established order (Armstrong, Farrell and Maiguashca 2003: 5; see further
Heywood 2014: 154-159). A physical representation of the “resisting” and
“transformative” transnational civil society and the politics of resistance is the
World Social Forum (established as a counterpart to the World Economic
Forum). The World Social Forum is an annual meeting (since 2001) of various
civil-society organisations and social movements that are seeking to develop an
alternative future through the championing of “counter-hegemonic

Mikael Baaz: International Law in a “New Medievalism” 129
globalisation”. Sometimes the members of the World Social Forum are referred
to as the “global justice movement” or the “alter-globalisation movement”.
When speaking about transnational civil society, it should also be noted that
not all its “members” are representative, or for that matter, “civil”. Some
members – reaching from the Mafia to Al Qaeda – lack accountability and/or
seek to further dubious, reactionary, as well as criminal causes. These agents,
sometimes called “uncivil transnational civil society agents”, contribute,
among other things, to the growth of informal organised violence or “post-
international violence” (McGrew 2011: 27).
Global politics does not only involve a diversity of agents and agencies, but
is also, as indicated above, characterised by a diversity of political concerns.
The global political agenda is not only anchored in traditional geopolitical
concerns but also in the proliferation of different economic, social, cultural and
ecological matters. An increasing number of transnational policy issues, due to
globalisation, cut across existing political jurisdictions and transcend territorial
borders. Thereby they require intergovernmental and trans-border cooperation
for their effective management. (McGrew 2011: 27-28).
But globalisation and global governance is not the only obvious result of the
end of the Cold War. In terms of power distribution, the most significant
transformation was what (at least initially) appeared as the triumph of one
superpower over its main rival and, by extension, the emergence of a unipolar
order. During the 1990s it seemed that there was only one superpower left in
world politics. By the turn of the century, one popular view was that the United
States had transformed into what the French Foreign Minister Hubert Védrine
termed in 1998 as a “hyperpuissance” (hyperpower). In spite of its hyperpower
advantage in the 1990s there was, however, no clear evidence that the United
States was particularly enthusiastic in directing its power towards any
particular mission, beyond continuing to promote globalisation and spread
democracy. During the decade that followed the end of Cold War, the United
States could thus be described as a “curious hegemon” (Cox 2005: 69-70).
But if the end of the Cold War and the following acceleration of
globalisation manifested one of the great historical turning-points of world
politics, then 11 September 2001 (9/11) served as a painful reminder that the
new, post-Cold War global governance and world order that was in the making
was not one that found simple acceptance everywhere. Immediately after the
attacks on the United States, the Bush administration could count on
widespread support for its “War on Terror”, which at the time was considered
the concern of everyone. Less than two years later, however, this support had
shrunk considerable. “The coalition of the willing” – the countries that invaded
Iraq in March 2003 – was made up of a very limited number of countries,
including some with low international legitimacy. American hegemony was
transformed into dominance, and was resisted not only by the subjects of this
domination, states & non-state actors alike (Hettne 2009: 149; see also Baaz
2009; Heywood 2014: 45-51, 202-214).
The unfortunate interventions in Afghanistan, Iraq and Libya, together with
the confused and ineffective responses to the civil war in Syria, have led to
declining global influence and legitimacy of the West. The obstacles and
barriers that are erected at the borders of Europe to stop refugees also show

130 Mikael Baaz: International Law in a “New Medievalism”
how tolerance and compassion are being replaced by fear, anxiety and isolation
(Svenning 2016). At the same time, partly following the decline of Western
influence and legitimacy, China is transforming East Asia through its
extraordinary growth and active diplomacy. Most likely, future decades will
see an even greater increase in Chinese power, influence and legitimacy. How
this drama will be played out more in detail is, however, still an open question.
Will China become a part of the existing order or will it seek to overthrow it?
Presumably China will try to use its growing influence to reshape the
institutions of the international society to better serve its (national) interests.
Will the drama end with the ascendance of China and the establishment of an
Asian centred international order? (Heywood 2014: 52, 236-240; Ikenberry
2008).
It is now the right time to return to the question of whether global
governance and global polity imply global (or world) law or not. Globalisation
and the end of the Cold War have not only changed socio-economic, political
and cultural structures, but also (international) law. Put simply, following the
transformation of the constitutive structure of the modern international society,
the international legal order is no longer Westphalian. Global law – understood
as “a coherent legal system for a universal human society” – if existing at all, is
at the outmost in an embryonic phase. The variety of power centres and
decision-making bodies – including informal ones – has, on an overall level,
rather led to (i) the multiplicity of supranational normative regimes and sub-
systems; (ii) distinct sets of secondary norms or those relating to a branch of
special international law (known as special treaty-regimes); and (iii) self-
contained regimes that are awarded with their own principles, legal bodies,
enforcement and dispute resolutions mechanisms. This “legal pluralism” can
be illustrated by the fact that around ten years ago, the “Project on International
Courts and Tribunals” identified some 125 international bodies, all of which
issued decisions that had some effect on state legal authority. All in all, we are
currently witnessing the growth of global regulatory regimes – not least in the
economic and social areas. The fact that, in addition to states, other new
emerging forces – emanating from a multitude of agents – are taking part in
global governance, either through active participation in its framing or in
opposition, through a politics of resistance, makes the current legal framework
much more complex than before (Berman 2012: 6; Capaldo 2015; Heywood
2014: 345-350; Müller-Mall 2013: 2).
To summarise, since 1945, and particularly since the end of the Cold War,
we have witnessed the evolution of a global governance complex – which
embraces several other agents other than the sovereign nation state; agents
located above, within and between the states – that seeks to bring some sort of
order to global politics. In this complex, the United States has played a crucial
role; first by hegemony and then by dominance. This attempt to fundamentally
transform the international order has, however, as we now know, been met by a
politics of resistance, peaceful as well violent, from agents as different as the
Global Justice Movement and Al Qaeda (See further e.g. Heywood 2014: Ch.
12). Put somewhat differently, we are currently witnessing a struggle among a
multitude of different agents that are seeking to influence the structure of the
future political order.

Mikael Baaz: International Law in a “New Medievalism” 131
The above is, however, not included in order to argue that the sovereign
state is in decline. Rather, it is about displaying that the sovereign power and
authority of national governments are transforming. Sandwiched between
various forms of global and regional governance, states today assert their
sovereignty more in the form of a bargaining tool than in the form of a legal
claim to supreme power in the context of transnational systems of rule-making,
with other agencies and social forces. Put somewhat differently, the old
Westphalian concept of sovereignty is gradually being replaced by a new form
of sovereignty, which is understood as the shared exercise of authority and
public power. In this respect, we are witnessing the emergence of a post-
Westphalian “world order” (McGrew 2011: 28). Over and above this we are
witnessing a global power shift from the West to the East (see e.g. Frankopan
2016), which is something that, together with what has been argued above,
makes the development of a global law that is based on Western values less
likely (cf. Baaz 2016b).
“Global politics is”, summarises McGrew (2011: 28-29):
… a term that acknowledges that the scale of political life has altered
fundamentally understood as that set of activities concerned primarily with the
achievement of order and justice is not confined within territorial boundaries. It
questions the utility of the distinction between the domestic and the foreign,
inside and outside the territorial state, the national and the international since
decisions and actions taken in one region affect the welfare of communities in
distant parts of the globe, with the result that domestic politics is
internationalized and world politics becomes domesticated. It acknowledges
that power in the global system is not the sole preserve of states but is
distributed (unevenly) among a diverse array of public and private actors and
networks --- It recognizes that political authority has been diffused --- [I]t
affirms that, in an age of globalization, national polities no longer function as
closed systems. On the contrary, it asserts that all politics – understood as the
pursuit of order and justice – are played out in a global context (italics added).
He continues:
However, as with globalization, inequality and exclusion are endemic features
of contemporary global politics. There are many reasons for this, but three
factors in particular are crucial: first, enormous inequalities of power between
states; second, global governance is shaped by an unwritten constitution that
tends to privilege the interests and agenda of global capitalism; third, the
technocratic nature of much global decision-making … tends to exclude many
with a legitimate stake in the outcomes.
McGrew (2011: 29) concludes:
These three factors produce cumulative inequalities of power between the North
and South – with the result that contemporary global politics is more accurately
described as distorted global politics: “distorted” in the sense that the inevitably
those states and groups with greater power resources and access to key sites of
global decision-making tend to have the greatest control or influence over the
agenda and outcomes of global politics. In short, global politics has few

132 Mikael Baaz: International Law in a “New Medievalism”
democratic qualities. This sits in tension with a world in which democracy is
generally valued.
History teaches us that political orders can not only change, but have done so
several times over the last centuries. Needless to say, we do not know for
certain what the future holds. What we do know, however, is that the
(emerging) post-Cold War order is not only complex, but it is also still very
much in the making. Since the end of the Cold War, analysts and writers from
different disciplinary, ideological and cultural backgrounds have tried to
understand as well as, at least in some cases, anticipate the future (Cox 2011:
113).
What will the future world order look like? Have we reached the “end of
history” (Fukuyama 1992)? Are we “going back the future” (Mearsheimer
1990)? Could we expect “the coming of anarchy” (Kaplan 1994), “the clash of
civilisations” (Huntington 1992, 1996) or a “new interventionism” (Chomsky
1999)? Are we witnessing the emergence of empire emerging and with this the
establishment of a “universal” peace – a “Pax Americana” or a “Pax Sinica”?
Could European hegemony and a universal peace – a “Pax Europaea” –
develop in the future? The number of alternative perspectives of where we are
heading is, needless to say, vast (see further e.g. Baaz 2009; Bull [1977] 1995;
Hettne 2009; Cox 2001).
About 25 years after the end of the Cold War, some future perspectives or
visions seem more likely than others. A key concern when discussing the
future order is to decide where the political power centre of gravity will be
located (Hettne 2009: 121; Heywood 2014: 240-244, Ch. 22). Predictably,
considering the continual horizontal and vertical shifts in power as well as the
lack of consensus among key agents, the future order will be a multi-level,
multi-perspective and, by extension, a plural, not to say, hybrid order.
Considering some key aspects, the current situation is thus reminiscent of
the one that prevailed during the Middle Ages. Put somewhat differently, an
understanding of the Middle Ages can offer a background for the diagnosis of
transformations in the current world order, which could be, by extension,
projected into the future.
7 A New Medievalism
There is no medieval theory on the subjects of international relations properly
speaking, because under what has been called the theory of universal
community, political activity within European Christendom was not conceived
in terms of a dichotomy between domestic and foreign policy; theoretically
relations between pope and emperor and between feudal kings were expected to
follow the same rules and moral principles as those between kings and
subordinate feudal lords, or between kings and their subjects … Even today it is
not fantastic to speak of recent changes within the international arena as
pointing toward a kind of “new medievalism”. The trend would seem to be
towards complexities that blur the dividing lines between domestic and foreign
policy. We are faced once again with double loyalties and overlapping realms of
power (Wolfers 1962: 241-242, quoted in Friedrichs 2001: 475-476).

Mikael Baaz: International Law in a “New Medievalism” 133
The observation in the quotation above, which was made by Arnold Wolfers in
1962, indicates that, at least potentially, a proper understanding of the Middle
Ages can serve as a point of departure to a better understanding of current
transformations in the international society. However, he reaches the
conclusion that although it is interesting, a neo-medieval perspective did not
highlight what was going in international politic at the time in a satisfying way
(Friedrichs 2001: 476).
In 1977 Hedley Bull, the most prominent scholar of the first generation of
the English School of International Relations, in his now classic book,
Anarchical Society: A Study of Order in World Politics ([1977] 1995)
reconsidered, refined and (once again) dismissed the concept of “new
medievalism”. He concluded that even though there were certain features
providing prima facie evidence, there was no sufficient evidence for the
emergence of a new medievalism (Bull [1977] 1995: 254-266). Following this,
the concept was largely deserted and did not attract any attention until after the
end of the Cold War (see e.g. Held 1995; Kaplan 1994; Kobrin 1999). None of
these contributions, however, explore the concept thoroughly, from the
perspective of international relations theory or, for that matter, international
law (cf. Friedrichs 2001: 476).
In his inquiry about alternative paths to world order, Bull ([1977] 1995:
245) writes about a new medievalism in the following way:
It is also conceivable that sovereign states might disappear and be replaced not
by a world government but by a modern and secular equivalent of the kind of
universal political organisation that existed in Western Christendom in the
Middle Ages. In that system no ruler or no state was sovereign in the sense of
being supreme over a given territory and a given segment of the Christian
population; each had to share authority with vassals beneath, and with the Poe
and (in Germany and Italy) the Roman Holy Emperor above. The universal
political order of Western Christendom represents an alternative to the system
of the states which does not yet embody universal government … All authority
in mediaeval Christendom was thought to derive ultimately from God and the
political system was basically Theocratic. It might therefore seem fanciful to
contemplate a return to the mediaeval model, but it is not fanciful to imagine
that there might develop a modern and secular counterpart of it that embodies
its central characteristic: a system of overlapping authority and multiple loyalty.
He then continues to discuss if there is any evidence that the state system might
be giving a place to a secular reincarnation of the system of overlapping
authority and multiple loyalties that characterised the Middle Ages. He quickly
concludes that the fact that sovereign states are not the only important agent in
world politics, does not provide any indication of a trend towards a new
medievalism. The crucial question is whether the inroads made by these other
agents are undermining the ability of governments to control their own
economies, politics as well as law-making and enforcement. Bull identifies five
features of world politics in the mid-1970s that indicate such a trend: (i) the
regional integration of states; (ii) the technological unification of the world (iii)
transnational organisation; (iv) the disintegration of states; and (v) the
restoration of private international violence (Bull [1977] 1995: 245-266). After

134 Mikael Baaz: International Law in a “New Medievalism”
having examined these features, Bull, as indicated above, reaches the
conclusion that there was after all not sufficient evidence for the emergence of
a new medievalism in the mid-1970s.
In 2001, Jörg Friedrichs proposed that in the “changed international
environment of our present time”, it was time to reassess Bull’s judgment,
since the evidence that we are moving towards a new medievalism was more
convincing than ever before (p. 484). Some fifteen years ago he identified: (i)
more regional integration, in Europe as well as in other regions of the world,
than in the mid-1970s. The European Union resembled a “dynamic multi-layer
system” in which national sovereignty is getting more and more indefinable;
(ii) progressive technological unification; (iii) a proliferation and increasing
significance of non-governmental organisations, multinational corporations as
well as other transnational agents; (iv) several examples of disintegrating
states; and (v) a re-emergence of private international violence (p. 484).
Yet another fifteen years later, the conclusion seems unambiguous: the
features indicating the move towards a new medievalism – which were
originally identified by Wolfers in 1962, elaborated by Bull in 1977 and then
(once again) emphasised by Friedrichs in 2001 – are today growing almost
exponentially.
For example, we are currently experiencing an explosion of various forms
of regionalism(s) and more regionalist projects around the world. The widening
and deepening of the European Union is the clearest, but not the only, example
of this trend. Regional processes can be observed in the Americas, Asia, Africa
and so forth. Speaking about this renewed and worldwide trend of regionalism
– known as “the new regionalism” – it should be noted that it is not confined
simply to formal inter-governmental cooperation. The new regionalism is
rather characterised by being multidimensional, complex, fluid and non-
conforming, and involves non-state actors from corporations to social
movements (Söderbaum 2003: 1-2; see also Heywood 2014: Ch. 20).
After having become publicly accessible in 1991, the Internet is today used
by some 3.4 billion people. This means that close to 50% of the world’s
population has access to the Internet. In 1995, the figure was less than 1%
(Internet Live Stats 2016). By the early-2000s, cell phones became as
omnipresent as computers and text messaging developed into a cultural
phenomenon. During the 2010s, the widespread use and interconnectedness of
mobile telephony and networked devices, internet websites and resources, as
well social networking have developed into a de facto standard in digital
communication. The Internet is bringing a revolution along with it, which is no
less thorough and important than the Industrial Revolution some 250 years ago.
The thoroughness of the digital transformation can, Micha Kaufmann (2012)
argues, be illustrated by the word “local”. Once it referred to our own street,
town or even state, but now everywhere is local. Where once our reach was
restricted by physical boundaries, today almost everyone and everything is not
more than a digital handshake away. Current international society, the global
market and transnational society are “network” societies (Castells 1996, 1997,
1998), which interact with one another in an unprecedented way. Put in short,
the modern society of states is moving towards increased global integration.
This trend is, however, not only the obvious one in our modern, globalised

Mikael Baaz: International Law in a “New Medievalism” 135
international society. It is also possible to identify an opposite trend, namely
“local fragmentation”. In addition to globalised states, we see several other
agents, including non-governmental organisations, multi-national corporations,
transnational civil society agents and social movements, which are seeking to,
in different ways and with very different agendas, influence the governance of
global affairs.
We have also, partly as a consequence of the failed attempts of the United
States to establish a neo-imperial Pax Americana and the closely associated
politics of “the new interventionism”, witnessed the collapse of a number of
sovereign states, including Afghanistan, Iraq, Libya and Syria, as well as the
re-emergence of private international violence in various shapes, including
terrorism, private military companies and organised crimes.
In addition to the above, we have also witnessed the emergence of a number
of “global cities” over the last decades. These cities – including New York,
London, Brussels, Tokyo, Hong Kong and Singapore – are performing roles
not completely unlike the roles of the powerful city-states in Renaissance Italy
or the Hanseatic League. They are considered to be important nodes in the
global economy and sometimes have more in common with one another than
they have with the sovereign state in which they are located. A recent and
illustrative example of this trend is the “reaction” of the City of London after
the referendum deciding that the United Kingdom should leave the European
Union. The United Kingdom voted to leave, but London – with an economy as
big as Sweden – voted to stay. Voices were then raised that the Londoners,
after Brexit, should go alone (Baxter 2016). (This development – the
emergence of new “city-states” – may appear to contradict the tendency of
“regionalism” discussed earlier in this paper. However, the perspective of a
new medievalism comprises several multiple and contradictory tendencies. The
perspective is per se contradictory).
The list of examples could go on, but what has been put forward above
serves as sufficient evidence, not necessarily for the emergence of a new
medievalism per se, but certainly for the usefulness of going “back to the
future” and making use of the neo-Medieval analogy as a heuristic device in
seeking to understand the current “globalisation” of international society
(Friedrichs 2001: 477).
For several scholars, such as Robert D. Kaplan (1994), going back to the
future, to the Middle Ages equals a “nightmare” – characterised by disorder
and violence, at best eased by a few civil strongholds of communitarian
neighbourhoods. The Middle Ages are understood as the Dark Ages, “when
reason had not yet illuminated mankind and life was brutish and nasty”
(Friedrichs 2001: 485).
But, as displayed above, one does not have to know very much about
history to understand that to equate the Middle Ages with the Hobbesian state
of nature is simply wrong. The Middle Ages, just as our times, were
characterised not only by fragmentation but also with universalism. The
mediaevalist system was “a system of overlapping authority and multiple
loyalty, held together by a duality of competing universalistic claims”; the
nation-state system and the global market holds together the current world
order. Put somewhat differently, “both the nation-states system and the [global]

136 Mikael Baaz: International Law in a “New Medievalism”
market economy can be interpreted as competing but independent (and anyway
coexistent) hegemonic projects” (Friedrichs 2001: 486-490). By this, let us
now turn to a discussion on the status of the institution of international law in
this new and different political order.
8 International Law in a New Medievalism: Legal Pluralism and
Hybridity
We thus live in a transformative period that is characterised by concurrent
processes of universalization and fragmentation and, by consequence, several,
partly overlapping levels of authority, multiple loyalty and various and
sometimes competing normative orders. These areas of complex overlapping
legal authority are sites of confusion and conflict (Berman 2012: 9). At the
moment there are few features, if any at all, which indicate that the current
development will change shortly. On the contrary, most features indicate that
the current transformation – towards a new medievalism – will continue in the
foreseeable future, and possibly with the difference that it will go faster in the
future than it does today. What implications may all this have for the future
prospects of international law?
In this section, two features of international law in a new medievalism will
be discussed, namely (i) “pluralism”; and (ii) “hybridity”. Legal pluralism is,
put simply, when in a social field more than one source of “law” and more than
one “legal order” is observable. According to Brian Tamahana:
Legal pluralism is everywhere. There is, in every social arena one examines, a
seeming multiplicity of legal orders, from the lowest local level to the most
expansive global level. There are village, town, or municipal laws of various
types; there are state, district or regional laws of various types; there are
national, transnational, and international law of various types. In addition to
these familiar bodies of laws, in many societies there are more exotic forms of
law, like customary law, indigenous law, religious law, or law connected to
distinct ethnic or cultural groups within a society. There is also an evident
increase in quasi-legal activities, from private policing and judging, to privately
run prisons, to the on-going creation of the new lex mercatoria, a body of law
that is almost entirely the product of private law making activities (quoted in
Müller-Mall 2013: 8-9).
One feature to be found (with)in pluralised law is “hybridity”. This concept,
originally a botanical one, implies the existence of different legal, quasi-legal
and non-legal orders, regimes, traditions, doctrines and discourses. Hybridity
does not describe the coexistence of two or more legal orders, nor does it
describe a pure overlap, without transferring at least one of the orders into
another sphere. It rather describes, in a somewhat generic fashion, situations in
which legal orders or laws overlap without fully replacing one another.
Hybridity is about supplementing rather than replacing; less about a sum than a
product. The concept of hybrid law seeks to describe different laws that
supplement one another as well as interact with one another. By this, the

Mikael Baaz: International Law in a “New Medievalism” 137
concept of hybridity in a certain sense is at odds with the one of pluralism,
since this latter quality of law contains the notion of legal orders or laws in
parallel. Put simply, different orders, regimes or orders simply coexists, they
do not amalgamate (Müller-Mall 2013: 12-13).
Hybrid law is not possible to examine by looking on the constituent parts,
since the parts are no longer thinkable as discrete entities. In the book, Legal
Spaces: Towards a Topological Thinking of Law, Sabine Müller-Mall (2013:
14), illustrates the quality of hybridity by using the example of cultivated
apples. She writes:
[I]f an apple cultivator crosses an apple of the kind a and one of the kind b,
obtaining a result that consists in an apple of the new kind c, we will not be able
to understand this new kind as the sum of apple a and b, nor will it be an apple
that is completely different from both original kinds. Probably molecular
biologists will be able to extract some DNA sequences of this new apple c that
are identical to the ones found in apples of the kinds a and b. But they will also
find parts of the DNA that are neither identical to the DNA of apple a, nor to
apple b. Therefore, a description of apple c that draws only on the
characteristics of apple a and b will never be sufficient. But neither will a
description of apple c be complete without referring to apples a and b, or at
least it will ignore important parts of the apple’s genesis that are interesting not
only from a historical point of view, but also concerning tis characteristics. The
same is true for hybrid law.
Other hybrid offspring that results from the “cultivation” of two entities
includes: mules, ligers, plug-in hybrid cars and mixed martial arts.
In addition to the legal hybridity discussed so far, Müller-Mall (2013: 14-
15) argues that it is possible that there is a second level of hybridity in law.
“Law consists”, she writes, “in a multiplicity of form that its normativity can
adopt --- [T]hese forms do not only coexist, but they merge into each other ---
[E]very single time one of these forms is applied … other forms get involved
and transformed by the procedure of application”. To illustrate this point, she
writes as follows:
[A] judge decides a case. In doing so, she applies a specific interpretation of a
norm and/or a precedent. These interpretations fall back upon the norm text, the
precedent text and case, and they probably also fall back upon legal doctrines as
well as legal theory; and these are only the very simplest of settings --- In any
case, the merging thesis consists in the idea that by applying a norm, a norm
text, and/or a doctrine to a certain case, in a certain interpretation, we transform
them, we add meaning that is able to do both: to influence and transform the
arrangement of the applied norm with respect to other norms, but also to change
the content of the norm by adding another application Müller-Mall (2013: 15).
In a hierarchical legal system, every legal rule and act is derived from another
rule or act. The legal system can thus be described in terms of a pyramid of
rules and acts. Hybrid law, on the contrary, cannot be described like this, since
its generic mix of origins is the very aspect of hybridity that constitutes the
concept. Put somewhat differently, the concepts of hybridity and hierarchy

138 Mikael Baaz: International Law in a “New Medievalism”
draw on very different understandings of law. Hybridity refers to manifold and
different origins of law as well as “relationality”: that is, “the constituting
aspects of law … are not its elements, but the relations in between them. The
relationality of hybrid law implies a number of things. Hybrid law includes a
non-definite number of dimensions that it can take. It is ‘multidimensional’,
since neither the dimension of verticality (hierarchy), nor the dimension of
horizontality is sufficient to describe it. Hybrid law is also dynamic: that is, the
law will not be the same at two different moments in time” (Müller-Mall 2013:
17-28).
In order to provide a better understanding of plurality and hybridity in
international law – recognised not only as future features of international law
in a new medievalism but also as features that are already characterising
current international law – a concrete example will follow. The example is
picked from the domain of international criminal law.
Between 17 April 1975 and 7 January 1979, the Khmer Rouge ruled
Cambodia. During this period some 1.7 million people are estimated to have
died from starvation, forced labour, torture and execution. In 1997, the Royal
Government of Cambodia requested the United Nations to assist in establishing
a Court to prosecute the senior leaders and those believed to be most
responsible for grave violations of national and international law during the
three years, eight months and 20 days of Khmer Rouge rule. In June 2003,
following long and difficult negotiations, the United Nations and the Royal
Government of Cambodia finally reached an agreement establishing such a
Court, the Extraordinary Chambers in the Courts of Cambodia (ECCC) (see
further Baaz 2015a, 2015b; Baaz and Lilja 2014).
The ECCC is constituted by three documents: (i) The ECCC Law (2001);
(ii) the Agreement between the Royal Government of Cambodia and the
United Nations (2003); and (iii) the ECCC Internal Rules (9 rev. ed., 2015).
The court is a creation sui generis, it is a compromise between the civil law
tradition, which uses investigating judges, and the common law tradition,
which grants the prosecutor a strong position. In addition, the ECCC applies
international as well as national law and the responsibilities of each office are
shared between a Cambodian and a foreigner. By consequence, there are two
Co-Prosecutors and two Co-Investigating Judges who share the responsibilities
of each office. In practice this means that the Co-Investigating Judges and the
Co-Prosecutors, respectively, must act in consent. A case is initiated by a
written submission from the Co-Prosecutors requesting the Co-investigating
Judges to open an investigation and to propose charges. The Co-investigating
Judges then look into the case. During this process, parties may appeal against
decisions made by the Co-Investigating Judges, apply to annul investigative
action or require various sanctions against individuals who are allegedly
interfering with the administration of justice. At the end of the investigation,
the Co-investigating Judges write a closing order, deciding whether the person
being investigated should be prosecuted or not and in the former case what the
charges should be. During this process the Co-investigating Judges also decide
who can be a civil party in a future trial. If the closing order concludes that an
individual should be prosecuted, the case is put before the Trial Chamber that
decides if the prosecuted individual is guilty or not, orders possible sentences

Mikael Baaz: International Law in a “New Medievalism” 139
and, if applicable, collective reparations to victims and civil parties. The Co-
prosecutors, Civil Parties and the Defence can appeal the decision to the
Supreme Court Chamber; decisions made by the Chambers are, however, final.
According to the ECCC Law, the Court’s procedure should, as we know, be in
accordance with Cambodian Law, with guidance from international procedural
law only where there are gaps in the Cambodian Law, uncertainty in
interpretation or an issue with consistency with international standards. In this
regard, the ECCC has faced even greater challenges than in the case of the
combining of substantive law being discussed above (see further e.g. Baaz
2015a, 2015b).
The main issues concerning the rules of procedure are twofold. Firstly,
when the ECCC Law was agreed, Cambodia in fact lacked a comprehensive
criminal procedure code. Such a law – the Criminal Procedure Code of
Cambodia – was not adopted until August 2007. Secondly, the Criminal
Procedure Code, which was drafted by French legal experts, is out-dated and,
according to former International Co-Investigating Judge Marcel Lemonde,
was “obsolete before it was even used” (quoted in Ciorciari and Heindel 2014:
63). In responding to this somewhat awkward situation, the ECCC has chosen
to develop and adopt its own procedural rules – hybrid and sui generis rules
(see the ECCC Internal Rules, 9 rev. ed., 2015).
And as if the above were not enough, it can also be mentioned that in
addition to several states and intergovernmental organisations, several non-
governmental organisations are working in Cambodia seeking to influence the
negotiations in the ECCC as well as the outcomes of the proceedings in various
ways, by contributing both to a politics of governance and politics of
resistance. Illustrative examples in this regard are (i) how the crime of Joint
Criminal Enterprise have been approached by the Court; and (ii) the way in
which the crime “forced marriage” has, following an extensive civil society
campaign, been integrated in the ECCC negotiations (see e.g. Baaz 2015c,
2016a; Baaz and Lilja 2013a, 2013b, 2016).
Taking the above into consideration, the ECCC is thus best understood as a
hybrid court – as an extraordinary experiment in international criminal law (see
further Baaz 2015c). Put simply, the ECCC can be seen as a reminder that the
future is already here; a legal future implying legal pluralism, hybridity,
“relationality”, “multidimensionality”, “complexity”, “dynamics” and
“irreversibility”.
9 Concluding Remarks
The (speculations) above implies several things. Most implications, big and
small, have been presented and discussed subsequently in the paper. Taking
this into account, this final section will focus solely on an important but not yet
discussed implication that follows from what has been put forward above,
namely: what implications may the perspective of (the coming of) a new
medievalism have on International Law? Put somewhat differently, what does
a messy, multi-level and multi-perspective political order imply for the future
study of International Law? For example, pluralism, not to mention legal

140 Mikael Baaz: International Law in a “New Medievalism”
hybridity, challenges more traditional perspectives on international law –
including legal positivism and natural law by, among other things, indicating
that there can no longer be a single answer to fundamental questions such as,
which norms should prevail in world politics and who gets to decide this
(Berman 2012)?
A new medievalism perspective requires a more “social constructivist”
approach to International Law – one that acknowledge the linkages between
law and politics and which departs from philosophical pragmatism and Legal
Realism. Such an approach can serve as a via media in a divided, not to say
dividing, discipline and thereby making it possible for various theoretical
perspectives – including “dissident” ones, such as Critical Legal Studies, Post-
Modernism, Third World Approaches to International Law (including Post-
Colonialism), Feminism and Law and Literature – to communicate with one
another as well as contribute to our common understanding of the institution of
international law (in the future) on a (more) equal basis.
Over and above this, a new medievalism perspective also indicates that
scholars of international law scholars need to acknowledge the messiness of the
current and future world order and the complex political context in which
future international law will be played out. International Law needs to benefit
from and integrate with the knowledge and approaches from other disciplines,
most obviously Philosophy, History, Politics and Economics but also, for
example, Peace and Conflict Studies, Security Studies, Resistance Studies and,
perhaps even less obvious, Cultural Studies and Anthropology. International
Law in a new medievalism needs to be approached in a multidisciplinary, if not
interdisciplinary, way. Fundamental questions – such as: What are the
ontology, purpose and normative value of international law? – need to be asked
again. Scholars of international law also need to be more open than they are
today in applying non-traditional methodologies and methods for seeking to
understand international law in a new medievalism, including humanistic as
well as social scientific ones, and by admitting, among other things, that
“international law is different in different places” (Baaz 2016b) as well as that
much could be benefited from studying the institution of international law in a
comparative perspective (comparative International Law), focusing not only
international treaties, judgments and doctrine but also by applying e.g.
ethnographic methods such as “participatory observation” and “interviews”. To
conclude, making sense of international law in a new medievalism will place
greater demands on legal scholars than previously has been the case.

Mikael Baaz: International Law in a “New Medievalism” 141
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