Anne Orford’s research while affiliated with University of Melbourne and other places

International law is not merely a set of rules or processes, but is a professional activity practised by a diversity of figures, including scholars, judges, counsel, teachers, legal advisers and activists. Individuals may, in different contexts, play more than one of these roles, and the interactions between them are illuminating of the nature of international law itself. This collection of innovative, multidisciplinary and self-reflective essays reveals a bilateral process whereby, on the one hand, the professionalisation of international law informs discourses about the law, and, on the other hand, discourses about the law inform the professionalisation of the discipline. Intended to promote a dialogue between practice and scholarship, this book is a must-read for all those engaged in the profession of international law.

Introduction The proper relation between law and order has long been a contested one. Attempting to determine the proper relation between international law and international order is an even more difficult task. Does international law exist to create and maintain international order? Should this be one of the functions of international law? If so, what kind of order is international law designed to secure and maintain? Does constituting order always take priority over all other goals, values or interests? Who decides? These are particularly difficult questions for international lawyers, because international law has predominantly been understood as a means of governing relations between sovereign states. In this view, states are the authors of law and the bearers of pluralism. International law only exists to the extent that sovereign states consent to be bound by specific obligations. International law, like private law, is thus portrayed as a system for governing relations between equals. In the case of international law, the equality of subjects plays an even more fundamental role than in domestic legal systems, where the idea that agreements must be honoured finds a guarantor in the state. Because international law is a system in which there is no higher guarantor, international jurisprudence is strongly shaped by the notion of consent and by the idea that law only exists to bind states to their commitments. According to this view, international lawyers fulfil their function when they find ways for these alienated entities to express their national interests or their instrumental objectives in the law they bring into being.

International law emerged as a professional academic specialization in a 19th century European context of wide-ranging public debates about the nature and cultural significance of science. Ever since, the status of international law as an academic discipline has been intimately connected with the capacity of international lawyers to demonstrate that our discipline is properly scientific. Yet the ideals of science upon which international lawyers have drawn in seeking to demonstrate the scientific nature of our work have not remained static. This article explores how those shifting ideals of science have shaped the concerns, questions, methods, and theories adopted by professional legal scholars in different times and places, including the 19th century Cambridge of Whewell, the 20th century Vienna of Kelsen, the post-war New Haven of McDougal and Lasswell, and the globally networked university of the 21st century. In returning to the historical debates out of which today’s highly stylized versions of positivist and policy-oriented international law emerged, the article shows that while scholars of international law have shared a commitment to scientific values of rationality, progress, and objectivity, they have understood those commitments as requiring different forms of conduct, different means of producing knowledge, and different relations to the state.

This article seeks to answer one of the questions posed by the editors of this special issue: how is it possible to live with honour according to the law one represents in the legal spaces of the South? The article explores two related issues raised for me as an Australian Professor of International Law by this question. First, what might it mean for the tradition of international law that emerged alongside the modern European state system to recognise indigenous laws as another source of ceremonies, languages, privileges and obligations governing the meeting of laws in the South today? And second, what resources does European international law make available that might enable it to encounter other legal orders, as one participant among many rather than as the expression of a universal law? The article looks to examples of protocols, rituals and norms derived from human rights law, the law and practice of diplomacy, laws to facilitate commercial sociability, and laws relating to the use of force, in order to explore whether these legal traditions provide any means to limit, constrain or guide the representatives of European states and their colonial successors as they journey beyond the legal space of Europe.

International Authority and the Responsibility to Protect seeks to show that the emergence of the responsibility to protect concept and its embrace by a very diverse range of actors is one sign of a significant shift in the representation of authority in the modern world. More specifically, the book argues that the responsibility to protect concept offers a framework for rationalising and con- solidating practices of international executive rule, many of which were de- veloped by Dag Hammarskjold, the second Secretary-General of the United Nations (UN), in the early years of decolonisation. Since the late 1950s, the UN and other international actors have developed and systematised a body of practices aimed at 'the maintenance of order' and 'the protection of life' in the decolonised world, 1 including fact-finding, peacekeeping, the management of refugee camps, civilian administration, strategic forms of technical assistance and early warning mechanisms. My aim was to explore the ways in which those practices of governing and that form of authority had been represented. The book is also a wager that there is something to be gained—theoretic- ally, politically and empirically—by developing a primarily juridical (rather than historical, philosophical, economic or sociological) method as a basis for exploring such contemporary international developments. Juridical think- ing frames the problems that the book raises, shapes the archival choices made throughout its research and the construction of its narrative, structures its argument and provides its conceptual underpinnings. Of course, this begs the question of just what 'juridical thinking' is, where we might look for it, and to which historical figures and authors we might properly make reference in order to develop a legal analysis that is also critical, idiomatically recognisable and politically useful. I return to these questions below.

The post-Cold War era has seen the increased significance of moral argument as a force in international relations. Arguments such as those developed in Michael Walzer’s Just and Unjust Wars have shaped debates about the relative weights to be given to non-intervention and human rights as core values of international law over the past three decades. This article analyses the form of moral internationalism that is exemplified by Walzer’s work, and the ways in which that moral internationalism has sought to justify humanitarian intervention, foreign involvement in civil wars, regime change, and, most recently, the responsibility to protect concept. It concludes by exploring the political stakes of the turn to what Walzer calls ‘practical morality’ as a basis for reforming international institutions and laws, and the ways in which new forms of internationalism are redrawing the realism/moralism map.

Outside Sweden, Dag Hammarskjöld is usually remembered for his role as the second Secretary-General of the United Nations (UN) from 1953 until his death in 1961. The legacy of his time in that office includes his expansion of the authority of the Secretary-General, and his transformation of the UN from an organisation devoted to ‘static conference diplomacy’ to one that functioned as an instrument of ‘dynamic executive action’. Hammarskjöld's development of international tools such as fact-finding, preventive diplomacy, technical assistance, peacekeeping and civilian administration ensured that the UN would play a major role in the management and policing of the decolonised world for decades to come. Yet the entry on Hammarskjöld that appeared in the 1952 edition of Sweden's principal encyclopaedia, Svensk Uppslagsbok, listed him as an ‘economist’. Hammarskjöld's approach to the role of the international civil servant, and the model of the state and of administration that he applied in the decolonised world, were influenced by the milieu in which his economic expertise had developed during the 1930s and 1940s. Hammarksjold's vision of the proper role of the state in relation to society and the market was informed by his early involvement with two dynamic generations of Swedish economists, his experience as a senior Swedish civil servant involved in fiscal and monetary policy, and his role as an international negotiator involved in planning for the reconstruction of Europe after the Second World War. His biographer, Brian Urquhart, suggests that ‘political economy’ remained Hammarskjöld's lasting interest even after he became Secretary-General. Economics was for Hammarskjöld a pragmatic science, which he understood as ‘one aspect of a wider picture of society, an instrument for the achievement of political, social, and ethical objectives’.

In his Philosophical Investigations, Ludwig Wittgenstein declared: ‘We must do away with all explanation, and description alone must take its place.’ Michel Foucault in turn repeatedly referred to his method of study as description, arguing that the role of philosophy is not to reveal what is hidden, but rather to make us see what is seen. This essay suggests why the turn to description as a mode of legal writing might be a productive move at this time.