Bluntschli, C’est Moi? International legal history and hagiography

ABSTRACT

Hagiography comprises idealised biographical histories of religious, political, cultural, and academic figures. While often centring on character, they also record academic accomplishments that evidence a person's worth as an exemplar. Critically, academic hagiographies are central to canon creation. This article investigates if hagiographical tendencies within international legal history authenticates the modern depiction of the international lawyer akin to the form of the nineteenth century white male intellectual. The article asks whether there is a role for (anti)hagiography to establish sites of personal identification. Within international law, the historical turn studies both the role of international law in global histories and the discipline, but the turn can be explained as a form of canon creation, within which hagiography plays a role, and within that, processes of aphasia, intentional forgetting, and international legal silences. This article reflects on hagiography as an unacknowledged international legal historiographic methodology and sets out a nine-part method for establishing an (anti)hagiographic approach to personal identification with the canon.

KEYWORDS:

• History of international law
• hagiography
• aphasia
• intentional forgetting
• international legal silence

1. Introduction

Hagiographies comprise idealised biographies of religious, political, and academic figures that also function as histories of disciplines, institutions, and creeds.¹ While centring on biography, they also record miracles, achievements, and accomplishments that evidence an individual’s and, importantly, a discipline’s worth. Through a range of hagiographic techniques, such as biographical embellishment sitting alongside racial aphasia and gendered intentional forgetting, academic canons are produced. The paper examines whether hagiographical tendencies within international legal history as both a process of production and as a validation of the contemporary image of the international lawyer as the nineteenth century white male academic maintains the discipline’s exclusionary and hierarchical tendencies. The paper asks whether raising some and reducing others to the point of creating silences, through hagiographic practices, makes it more difficult for some to self-identify with international law’s canonical figures and thus establish themselves as key canon-makers in their own right. The article looks at aspects of international law’s hagiographic practice and considers the structures that continue that trend and their implications for the discipline.

International legal history is core to contemporary international law, and hagiography, as both an outcome and process, illustrates both its promise and its harms. Hagiography is a form of biographical history. Biography is a narrative account of a life story, that is informed both by the life of the subject but also the position of the author.² Hagiographies add an additional layer to biography, namely embellishment. Often acting as repositories of cults, traditions, and customs, as archives of deeds, and of legends, hagiographies also serve broader political functions. For example, hagiography is central to disciplinary canon creation. Canon creation occurs through narrative biography of those whose works are the essential touchstones to whom all other work must ultimately refer. When that narrative biography includes a feting of its subject, it becomes hagiographic. The choice of subjects, works and deeds hagiographed, combined with omissions and silences, become both the bedrock and the hierarchy on which a discipline, here international law, is built.³ Yet, when a discipline’s canon is a homogenous group – such as international law’s ‘highly qualified publicists’ – marginalisation inevitably follows.⁴ And as Pereira and Ridi describe, there remains within international law an enduring incapacity to identify and question that homogeneity.⁵ One potential way through this incapacity is to consider the role of personal identification in the canon, and within that, (anti)hagiography.

The necessity of establishing and perpetuating a canon – the collection of works or figures representative of a discipline – is common across academia, as are eulogistic accounts.⁶ But, presently, personal identification with that canon is only possible for those who resemble the hagiographed subjects. Further, to hope to eventually become hagiographed and to attain disciplinary prestige, new generations of academics must repeat the same academic ways of being as those in the canon. This article develops a form of (anti)hagiography that can be used to establish alternative sites of personal identification outside the hagiographed canonical authors, so that Bluntschli, C’est Moi? is not the only choice for aspiring international lawyers.⁷ A diverse canon of scholars, including (anti)hagiographies, needs to exist, while those already subject to hagiography, demand contextualisation.

To do this, this article uses feminist legal critique as its core strategy. This includes intersectionality as well as feminist histography alongside TWAIL and queer theory to consider (anti)hagiography’s potential for canon disruption.⁸ (Anti)hagiography is also biography, but with an additional layer that embellishes what typically is omitted or downplayed, including interdependence over individual greatness, queerness and femininity, inconsistency and non-linearity in thought and action and marginality not as things that were overcome but as fundamental to identity. (Anti)hagiography wallows in the subject’s messiness and in doing so, exposes a landscape of figures otherwise omitted from canon creation.

A. International legal hagiography and (anti)hagiography as method

Hagiography is a positive endeavour as it creates canonical figures, but a negative undertaking when it relies on two forms of forgetting, racial aphasia and gendered international forgetting, to constitute historical silences. ‘Aphasia’ is a form of racialised forgetting, while gendered ‘intentional forgetting’ is a tactic of exclusion. Aphasia as calculated forgetting is ‘an obstruction of discourse, language and speech’ which in colonial contexts is a ‘purposeful evasion’ of racist pasts that causes a disconnect between them and racist presents, producing present and ‘historical silences’,⁹ while ‘intentionally forgetting’ is a gendered tactical process of ordering people by forgetting names, qualifications and contributions.¹⁰ These tactics are often embedded in discourse which present cores and peripheries as inevitable aspects of the international legal order. In contrast, radical forgetting/remembering upsets the canon by dislodging processes and hierarchies, creating feminist and queer (un)canons and producing (anti)hagiographies.¹¹ While intersectional mapping counters hierarchical processes and centres women, queer and non-white scholars, as more than ‘contextually’ marginal, silent or as encounters.¹² In combination, this article demonstrates how these tactics both show how hagiographies are produced and become canon while also pointing to methods of disruption and change.

Much international legal historiographic work catalogues academics, especially those living in the nineteenth and early twentieth centuries, that infuse the ‘study of international law with a sense of historical motion and political, even personal, struggle’.¹³ This is not necessarily negative, as Halperin suggests hagiographic figures are needed.¹⁴ Hagiographies establish a discipline’s homogeneity through aphasia and intentional forgetting but are also sites of potential critique. International legal hagiography extends beyond biographical methodologies into histories of international law as a discipline; by mixing historiographic methods with legal rhetoric that, in turn, establishes and sustains the discipline. The turn to history examines both the role(s) of international law in global histories and the discipline itself, a form of contemporary canon (re)creation falling within the scope of hagiography. There are a multiplicity of hagiographic forms for canon creation, for instance, Libri Amicorum, Festschriften, obituaries, processes of naming places, artworks, temporal epochs, plaques, busts, and statues which create iconographic spaces.¹⁵ Nicolson argues that the study of elite views within imperialist discourse dominates international law, but this is unsurprising in a self-obsessed discipline where sustaining canon dominates.¹⁶ And as Amorosa and Vergerio contend, there is a need to go ‘beyond the monolithic myth of a single, dominant, well-defined ‘Western canon’.¹⁷ This papers asserts that we need to go further than this and entirely disrupt what we value as canon itself by centring (anti)hagiographic practices.

In the Gentle Civiliser of Nations, Koskenniemi writes that ‘in the margins’ were women and non-Europeans as objects of administrative regimes.¹⁸ But this reflects a hierarchy of meaning and authority that constructs who is marginal. Queer international legal theory demonstrates that hierarchies of meaning and authority construct who is marginal while normalising hierarchies and constructing identities.¹⁹ (Anti)hagiography may be one tool to disorder this process. For instance, (anti)hagiography would regard racial aphasia and gendered intentionally forgetting as merely temporary and as banishment but not erasure. It is possible to return to figures who sit in their marginal silence and centre those aspects of their biography which made them marginal. Dismantling enduring disregard requires, as Thompson suggests, retrieval, re-centring, and both the radical forgetting of some and the radical remembering of others if our aim is to bring international legal silences and disciplinary homogeneity to an end and to create possibilities for personal identification.²⁰

The article uses women and men as descriptive terms to draw particular attention to absences and silences, but does not intend that binary to be determinative of the disruption required, and as existing queer academic (potential (anti)hagiography) in other disciplines show, they are themselves constitutive of hierarchies and gendered intentional forgetting.²¹ Writing this article is steeped in my experience as an academic including my positionality as a feminist scholar, which is reflected in my choices of (anti)hagiography. Positionality (and privilege) always informs hagiographic subject choices and acknowledging that is the first step in (anti)hagiographic method. What is useful as positional identification is limited by my context.²² As a second step, creating space for a plurality of (anti)hagiographies developed from a multitude of positions is thus necessary.

Counteracting aphasia and intentional forgetting, and the possibilities of radical forgetting/remembering, require a range of methods.²³ There are excellent examples of practices that use socio-legal methods, re-address standard tropes, offer revisionist feminist accounts, scale theory, temporal and site specific re-orientations, queer theory or law and humanities to excellent effect.²⁴ (Anti)hagiography sits alongside these methodological interventions and adds a layer of understanding on how biographies of European male international lawyers use hagiography to create international law’s canon. This is done by (re)establishing their authority, while silencing others, reiterating a hierarchy of meaning and power created by these same men, the particulars of which are established in the first sections of this article.

This article considers international legal scholarship’s hagiographies. It begins by considering historiography and international law and the role of aphasia and intentional gendered forgetting. The article then moves to examines hagiography as a strand of biography, including looking at exclusions, its role in canon creation as well as feminist, colonial, and queer forms that (anti)hagiographies take. The piece then examines the methods used in hagiography within international law, specifically aphasia and intentional forgetting, the creation of contexts and what alternatives are possible. The article then looks to the methods of (anti)hagiography through radical forgetting/remembering and personal identification. By centring hagiography, the article pushes the discipline into rethinking why and how we go about telling stories about ourselves. Centring (anti)hagiography pushes the discipline to reconsider its self-constitution as a profession alongside the histories it writes about itself.

2. Histography and international law

Within histography, debate varies as to whether objective truth is findable or whether multiple equally valid truths co-exist, there is no one settled way ‘to do’ history correctly. These debates on approaches sit alongside discussions on how hierarchies of meaning or authority are established within history.²⁵ For instance, Roper and Elton argue that political history is based on empirical and objective analysis, that can be distilled.²⁶ White, in contrast, suggests that literature and history both rely on narrative and thus historiography cannot be purely scientific.²⁷ Scott, coming from a feminist perspective, shows that in the absence of a gendered approach to social systems, how relationships are ‘constructed as they are, how they work, or how they change’ is unknowable.²⁸ But, as Skinner suggests, what the most appropriate procedure is should be the guide to method.²⁹ A combination of historiographic tools is essential.

Orford argues that the dominance of the contextual method and its assertions of authentic accounts of law’s past leads to a new formalism, which returns international legal history to its roots and averts away from its politics.³⁰ She suggests focusing on what is useful. For Painter ‘context’ and choices of jurisdiction inhere methodological decisions, that, ‘[s]ince there is no place outside of ‘context’ from which to determine context nor any internal criteria within either object or context to guide the decision context is, in practice, decided by the historian’.³¹ But rarely is this brought to bear on legal work. Context is determinative, rather than a framework to consider the plausible meanings in dialogues between what Skinner describes as ‘philosophical discussion and historical evidence’ revealing the contingencies of ideas at specific moments, and the power structures that inhere.³²

Within international law, hierarchies of authority and meaning maintain a particular type of intellectual history as legitimate and naturalises silence as methodologically sound. The turn to history produces a wealth of interesting scholarship. But creeping rigidity in historiographic methods is best avoided.³³ Anecdotes abound of historians at conferences defending international lawyers who use non-Cambridge School historiographic methods or rely on non-written archives from those so tied to particular methods that all else is simply wrong.³⁴ This is not suggesting methodological debate is futile, it is the basis of much dynamism. Rather, rigidity forecloses other methodologies and causes debate to focus on who is using another discipline’s method best over the necessities of critiquing the reiteration of aphasia and gendered intentional forgetting that foment atrophy and produce single forms of hagiography.³⁵

Thompson states that international relations (law) is dominated by racial aphasia.³⁶ For Murphy, ‘intentionally forgetting’ is a tactical process that places some lower and others higher in a hierarchy of meaning and authority.³⁷ Aphasia and intentionally forgetting establish and are co-constitutive of hierarchies of authority which create Gopal’s historical silences which are acutely present within international legal history.³⁸ Policies, practices, and ways of academic being categorise some historical knowledge, experience, and struggle as necessary to be (re)heard and in doing so structures meanings, representation, and identity. This creates expectations of who (and whose struggle) is valid, important, and why. Aphasia and international forgetting buttresses structures that sustain international legal silences within international legal historiographic processes. A combination of immutable difference, hierarchies of authority and aphasia creates a landscape of international legal histories dominated by a single group. Alter argues that international legal scholarship favours top-down approaches, including great man biography, or as is argued here, hagiography.³⁹ Focussing on already eminent men re-imbues them with ever more influence by re-iterating their import while reinforcing silences. We lose valuable scholarship in these absences. Existing critique, from TWAIL or feminist scholarship and the rare socio-legal approaches demonstrates the quality of possibilities when great white men are de-centred and wider methodologies, including in histography, are embraced.⁴⁰

3. Hagiography

Hagiographies are globalised, crossing most faiths, traditions, geographies, and temporalities.⁴¹ Persian and Arabic scholars wrote many, they exist in Buddhism, Judaism and Hinduism.⁴² Hagiographies are also part of transnational, national, corporate, and disciplinary identity formation.⁴³ Hagiographies of politicians, writers, artists, scientists and academics are part of national and disciplinary identity creation, often written as secular hagiography but, at times, overlapping with religious forms.⁴⁴ There is much to critique of the hegemonic, gendered, colonial and racialised deployments of hagiography.⁴⁵ This section centres on hagiography’s use in canon creation in the form of academic biography as well as highlighting existing (anti)hagiography practices across feminist and queer histories.

Political contexts are central to hagiographic (re)production. They inspire and promote a propaganda for the individual, the creed, the custom, the institution, or the state, particularly as they are often written at rulers’ or institution’s request or form part of an academic disciplinary practice. For instance, tyrannical or colonial hagiographies play specific roles in driving political structures.⁴⁶ In medieval Europe, hagiographies were often written at the behest of political figures about religious actors but with heroic tales. They were used in creating national identities or, of critical importance here, establishing ‘new’ academic disciplines.⁴⁷ During periods of convulsion, dispute or revolution, hagiographies act as a distinct method of preserving a conservative narrative or to counter reform or change.⁴⁸ But hagiography may also be counter-texts that disrupt orthodox understandings of tenets, or progressive histories. These (anti)hagiographies establish alternative sites of veneration, transgression, or (un)canons, often retrieving or reclaiming events or figures intentionally forgotten, combining a praxis of theory and practice that upends standards way of seeing.

Hagiographies are occasionally used as archival sources but distilling fact from narrative, truth from fiction, propaganda from reality, and layers of idealisation to reveal what, if anything, is underneath is complicated. Ecclesiastical hagiographies are, in their own terms, methodological rigorous but contingent on religious dogma, historical era and political exigencies.⁴⁹ For example, following Descartes, French hagiographers removed fantastical elements from their subject’s lifetimes while modern Russian hagiography adapted their methods to the death of the last Tzar.⁵⁰ Hagiography, as Hobsbawm and Ranger suggest, forms part of the processes of inventing traditions to infill nationalist histories.⁵¹ States like Ireland, distil their early history from medieval hagiographies, creating both national myth and identity.⁵² Foster demonstrates how hagiographies feature in histories of the Irish War of Independence.⁵³ But the pioneers of the Irish state, like those in international law, could only by written about with reverence immobilising their lives. This meant writing out aspects of revolutionary leader’s identities, especially in post-colonial contexts. Intentionally forgetting female, queer lives, and others on the ‘margins’, is common across independence movements, revolutions and academic innovation, a point returned to later.⁵⁴ Creating hope during self-determination struggles and their aftermaths of economic, social, and cultural devastation demands heroes to produce states recognisable to the global legal/political order. But hagiographies are also part of the processes to (re)create and (re)orientate nationalisms within imperial states.⁵⁵ Hagiographies reveal a biographer’s own conceits and political contexts, which influences subject choice, something very much apparent in the choices made in the histories of international law.

Hagiographies often reject or intentionally forget (perceived) negative aspects of a person’s or institutions’ actions, character, beliefs, or self-identity, creating scaffolds of brilliance. For men, this often means passing off mistakes of youth, an idea or action recanted or regretted as a lesson learned, or if their greatness is so terrific, as acceptable foibles. For queer or non-white men, their treatment is more likely aligned to gendered and racialised tropes or those aspects or their self-identity intentionally forgotten or underplayed as insignificant to their work.⁵⁶ For women, it may mean erasing anything considered unfeminine or unwomanly or contradictory. For some, it includes interpreting decisions to cross-dress, to pass off or adopt male or non-binary identities, not as being inherently queer, as subversive acts or as necessity but to demonstrate masculine traits making them in turn more suitable for hagiography.⁵⁷ The following sections examine feminist, colonial, queer, and academic hagiographies to consider how scaffolds of aphasia and intentional forgetting perpetuate hierarchies of authority through an intermix of hagiographic methods of academic canon creation.

A. Feminism and hagiography

Feminism has a complex relationship with hagiography. Women’s presence in public spaces and the role of hagiography in mapping that space is key to patriarchal hierarchies. Hagiography as either great man biographies or cults of genius filled with gendered stereotypes of virility, personal glory, heteronormativity, and individualised endeavour prevails. For Lara, biographies are forms of self-presentation that hold the potential to transform the public sphere to accommodate a multiplicity of voices, moving toward the (anti)hagiography.⁵⁸ But women’s mere presence does not suggest emancipation. Ferres argues biography shapes aspects of the public space where women’s absences, constructed silences or intentional forgetting affects their possibilities for influence and reputation, particularly for those women who are also subject to racial aphasia.⁵⁹ Even with (anti)hagiography it remains a contingent space. To be worthy, women, and it often relies on the binary, must be exceptional and faultless, beyond reproach with their successes completely and utterly theirs, unless their (perceived) subversion, as Lyons argues, is the attraction.⁶⁰ For instance, early Christian women cross dressed and took subversive steps to place themselves into the public sphere, but these actions were interpreted to reinforce the links between masculinity and reverence rather than disruption or queerness, access to the public sphere was granted but at the cost of forgetting key aspects of struggle or identity.⁶¹

Feminist scholars of Christian hagiography argue linear temporality is a hagiographic trait.⁶² Hagiography ties the future to the past via nostalgia, hampering attempts to create a future unconnected to present structures. Brown argues, in contrast, hagiographies authored by women speak across time and reorientate masculine texts.⁶³ Feminist scholars draw inspiration from emancipatory moments of women’s collective and singular disruption or revolution illustrating continuing, enduring relevance to their present. Much as Otomo uses the Treaty of Westphalia to listen to women whose presence was intentionally forgotten, to re-insert lost voices.⁶⁴ The positionality of twelfth century hagiographer, the Nun of Barking, the language she chose, her role as intermediary between the subject, and reader alongside her historical and temporal place, including defending herself as a female hagiographer, is critical to her texts and to speaking across time.⁶⁵ Texts written by male scholars when rewritten by female authors offer a version of hagiography as feminist communication, narrative and retrieval, as radical remembering.⁶⁶ They re-insert aspects of a biography omitted as marginal, offering potential positional identification otherwise absent.⁶⁷ Nonadherence to strict linearity is then one aspect of the (anti)hagiography.

Within feminist scholarship, hagiography is both a method of communication and harm. Biography operates within a complex web of difference essential to understanding the complexities of the public sphere. Within international law’s public sphere, there is a chasm of international legal silences and aphasia. Academics who do not fit in the mould of virility, homosocialisation, racialised, gendered, and individualised glory are forgotten or silenced because they do support the power structure that hagiographies are intended to constitute and the canons that follow. The relationships between the subjects of hagiography, their authors, and the reader are contingent. The nexus between hagiography and preserving gendered, class based or racial tropes or of nostalgia must be eschewed. Feminist (anti)hagiographies offer a possibility of reorientating public space, of adopting non-linearity and espousing feminist communication and reconceptualization of exceptionalism to close the chasm of international legal silence.

B. Hagiography as (colonial) history

Hagiography plays a key role in colonialism and, as Greer outlines, how we see its histories.⁶⁸ Colonial hagiography is a complex genre encompassing a range of authors and subjects that incorporate core and periphery, racialised and gendered stereotypes alongside travel narratives that construct and map the political world they describe.⁶⁹ As Pace argues, slippage between historiographic methods can lead to the perpetuation of racialised stereotypes, silences and hierarchies.⁷⁰ Colonial hagiographies (which includes international legal academics, like Bluntschli, Grotius, and others, as agents of imperial discourse) are at times used as ethnographic sources of fact, becoming the taxonomy on which peoples are described.⁷¹

Nineteenth century international legal texts, in their focus on civilisational discourse, fall within this genre of colonial narrative and thus require robust engagement, while accepting that objective fact is impossible to distil, in separating as much as is credible from legal account. This can be particularly difficult as during this period styles of writing shifted to embrace ‘scientific’ discourse. For instance, French colonial hagiographies shifted in narrative content focusing on method and rigour emulating both Descartes’ and von Ranke’s source-based histories. They removed fantastical elements while maintaining their hagiographical content, thus it would be a mistake to discount nineteenth century texts, or accounts of that period as not hagiographical merely because they are not fantastical, the form alters but the outcome remains.⁷² Colonial hagiographies also follow patterns of gender and cultural ideals that describe the encounters between Europeans and local populations where the latter ‘appear as the Other imparting meaning to the life story of the subject’.⁷³ A pattern familiar in the personifications and biographical accounts contained in the international legal textbooks of the era.

Greer argues colonial hagiographies are ‘sites where notions of gender difference and racial hierarchy were enunciated, qualified, challenged, and inverted’.⁷⁴ Colonial hagiographic texts include complex accounts of women, of queer lives, of indigenous populations, and of officialdom.⁷⁵ Women are active colonisers and part justification for their hagiographies is their agency in moving from safety to danger, from civilisation to the wilderness for creating a world familiar to the core at the periphery. Indigenous peoples are everywhere, omnipresent as Greer describes it, but both stereotyped and racialised.⁷⁶ Indigenous populations, their language, customs, and their acceptance or rejection of ‘civilisation’ are essential to these hagiographies since the role of European missionaries and explorers in civilising (including extending international legal knowledge) is part justification for hagiography. But this can be complicated.

Roger Casement was knighted for his role in cataloguing colonial horrors in the Congo Free State and amongst the indigenous Putumayo population in Peru, but this critical human rights intervention, celebrated in its time by a knighthood, through a process of aphasia and intentional forgetting became an international silence.⁷⁷ There were multiple reasons for this, one significant factor was his recognition that the forms of colonialism he recounted as a ‘British’ civil servant led him to reconsider the colonial nature of rule in Ireland. What he learned at the peripheries and internal margins from other colonialised peoples, he turned upon the core, becoming an anti-colonial revolutionary and creating an ‘anticolonial epistemology’.⁷⁸ The second was his queer identity, used to undermine him, revealed during his trial for treason.⁷⁹ In combination, these two factors meant one of the first advocates of both a global human rights discourse and a non-racialised anti-colonialism, hagiographed in his lifetime, was swiftly forgotten. Casement bestowed with a knighthood as the epitome of the modern British ‘good’ colonialist became a queer anti-colonial revolutionary in solidarity with others subject to colonialism and then forgotten.

‘Good’ and ‘bad’ local populations, those accepting civilisation (and international law) and those rejecting it and the contingencies within those paradigms fit within the scholarship of nineteenth and early twentieth century international legal texts and hagiographies.⁸⁰ Hagiographies in the colonial context play a crucial role in building civilising missions, nationalism, categorising, constructing peripheries, establishing racialised hierarchies and creating the Other and contemporaneously processes of forgetting.⁸¹ It is in these moments where aphasia and intentional forgetting combine to establish a canonical history of the peripheries and internal margins. The construction of the liberal linear progression of international law, and nineteenth century international legal scholars as constructed as pre-cursors of that process (and of a universalised proto-human rights), requires that Others sit in the margins as insignificant, for their inclusion would suggest other histories which would trouble the canonical narrative, and with it, the power structures of the academy, with bodies, as Epstein writes, beyond the canon and so unsuited to hagiography.⁸²

C. Hagiography and academia

Hagiography is part of academic self-understanding and canon creation. Academic hagiography creates and sustains disciplines. The impossibility of positional identification amongst the pantheon of international law’s highly qualified publicists emerges from academic hagiographic traditions.⁸³ Academic hagiography aligns with political trends. Choosing those that are emblematic of a local, national, or global (colonial) agenda and, critically, of the discipline’s core political role, both national and international when establishing canon and traditions, is important.

During the eigteenth and nineteenth centuries, German academia used hagiography to create a national literary canon.⁸⁴ This process of finding and exalting excellence was a response to a perceived absence of a German literary canon.⁸⁵ Over several academic generations, a canon forming process, using differing forms of hagiography, perpetuated particular forms and structures creating cults of genius. For example, eulogy – funerial biography/hagiography – constructs academic self-representation. Pointing to the ‘history of literature or the history of science’, France contends eulogies establish a discipline’s self-understanding.⁸⁶ The propensity in eulogistic texts to insert the author’s own reflections forms part of the positional identification, as authors link their own career to their subjects. France stresses the overtly masculinised – and certainly not feminised or queer – nature of the French variation that maintains the populations of male dominated disciplines and perpetuates inherent power structures.⁸⁷

Traditions of academic hagiographic portraits extend well beyond Germany and France. Carlyle’s The Hero as Man of Letters, outlines new heroes for the modern age, includes academics as popular hagiographic figures.⁸⁸ Carlyle puts the Man of Letters as a hero alongside Divinity, Prophet, Poet, Priest, and Monarch and while admitting heroes are flawed, suggests imitation. Emerson, in the Representative Men, describes the (male) academic as sitting amongst other (male) hagiographic figures.⁸⁹ Both Carlyle and Emerson elevate and create scholarly and literary leaders that fit a gendered, racialised, and Eurocentric view of excellence that concretises an academic ideal and structures a hierarchy of academic ways of being but also forgetting other possible candidates who do not fit that mould. These eulogizations continue in the contemporary era, replicating academic canon creating processes, including in international law.⁹⁰ The figures chosen are those that emulate and fit the type established over successive generations of hagiography.

Halperin’s Saint Foucault suggests potential within academic hagiography for something else.⁹¹ It is unapologetically queer, advocating a form of worship which eschews the hierarchies and linear histories, and in some ways, worship. Halperin describes the ridicule he and other scholars who used Foucault initially faced and how this scorn suggested they worshipped Saint Foucault. Halperin argues that characterising it like this, makes his, and other’s admiration of Foucault something irrational, excessive, idolatrous, fanatical, weak-minded and superstitious.⁹² Halperin suggests Foucault’s role is contingent and so too the scholarship of those associated with his work.⁹³ He argues his relationship to Foucault is secondary, mediated, imaginary and, critically, hagiographical. Halperin states that his defence of Foucault is partly because of his own personal, professional, and scholarly vulnerability, because Foucault, c’est moi.⁹⁴

Positional identification is key to Halperin. What he shares with Foucault forms part of the hagiography. They share an approach to the sexual politics of truth and lives as queer scholars. This possibility of positional identification is essential, but it also points to why there is ridicule. Foucault as an avowedly queer scholar does not fit the cult of genius typography as established in academic hagiography, thus, Halperin’s hagiographic tendencies are treated as misplaced, he should find a more suitable canonical candidate. Yet as Halperin demonstrates, for him as a queer scholar, it is absolutely necessary. If Foucault, c’est moi is ridiculous it begs the question as to why Bluntschli, or any of the ‘highly qualified jurists’ c’est moi is not equally ridiculous. In that context Foucault, c’est moi is an example of a queer academic (anti)hagiography. It embraces the ridicule of exalting and finding inspiration in the ‘wrong’ academic type.

Academic hagiography shapes and sustains academic canon, which in turn, forms part of disciplinary creation. It maintains trends, it constructs disciplines, and intertwines them with the wider political spaces where hierarchies sustain who is likely to succeed, those who emulate the canon. Traditional hagiographies perpetuate idealised types as those to be emulated. Academic hagiography also preserves hierarchies of authority and racial aphasia by omitting certain figures or ignoring the negative attributes of its chosen canonical subjects. But the potentiality of the (anti)hagiography in creating a space for positional identification, as Halperin argues, is vital to diversifying academic life and unpicking hierarchies by relying on the wrong sort of hagiography. Locating himself in academia required Halperin to create his own hagiographic type, queer positionality in its own otherness creates the potential for such self-generating positional identification because it eschews the binaries of what are the right or wrong ways of academic being and disrupts the canon as a source of inspiration and emulation. It also pulls figures out of gendered intentional forgetting, including their sexualities. Hagiography is often limited to a pantheon of great cisgendered, white men so to create the (anti)hagiography two things must happen. First, it must be possible to move beyond Bluntschli c’est moi by demonstrating the harms associated with figures elevated within international law and second, a space for an (anti)hagiography pantheon, using the lessons of feminist, queer and anti-colonial scholarship needs to be created to counter the two processes of forgetting, aphasia and intentional gendered forgetting that foments international legal silences.

4. Hagiographical context and method in international law’s canon creation

Contexts constructed through the histories of international law, TWAIL, and feminist interventions aside, establish hierarchies of authority and meaning, relegate some and elevates others, creates saints but denies other’s agency, and ultimately constructs a context where conserving present power structures are necessary to maintain excellence. We forgive the nineteenth century men their foibles, ‘unfortunate’ language, support for empire, racism slavery, war and misogyny.⁹⁵ We talk of their context but do not trouble the choices and parameters forged to develop a canon of international legal texts or ponder the roles international law plays in delineating contexts, including the present context. This is essential to hagiography. Historic processes of inter-generational canon creation established a group of highly qualified publicists. Those wishing to now lead the discipline must identify with and imitate this group. But by returning to the construction of that context, as part of the hagiographic method and then taking a step toward radical forgetting/remembering other potential (anti)hagiographical figures may begin to fill the pantheon.

The nineteenth century international legal context is more complex than polite salons, meeting rooms and genteel conferences, it was also revolutionary, rude, and full of protest. This section considers what alternate contexts are constructible making apparent the aphasia and intentional forgetting that (re)constitute today’s international silences. This section, outlines the extent to which contestation existed, was common knowledge, and had broad geographical and temporal spread, the quantity being such that they must now be actively remembered in constituting international law’s canon as discipline.

In The Old Drift, Serpell defines history as ‘the word the English used for the record of every time a white man encountered something he had never seen and promptly claimed it as his own, often renaming it for good measure’.⁹⁶ This is how von Ranke, the founder of the modern discipline of history, worked, he categorised and named. Contemporaneous with von Ranke, international lawyers categorised, delineated, and defined and those who carried out that work became canonical hagiographed interlocutors. There are, of course, older figures, but it is in the nineteenth century, as Koskenniemi describes, that the modern discipline took shape.⁹⁷ Their views were not minority, albeit many were at the sharpest end of support for imperialism, slavery, racism and misogyny. But their views were, in their time, loudly and consistently contested and were far from universal or reflective of global international legal practice but remain the only basis on which to understand the discipline.⁹⁸

The first seven pages of Wildman’s International Rights in Times of Peace, written in 1850, justifies slavery.⁹⁹ In 1884 Lorimer wrote that ‘slavery … when it is employed, under very stringent regulations, as an educational institution for the benefit of the inferior races of mankind’ was permissible.¹⁰⁰ For Bluntschli mixing races was ‘unnatural’.¹⁰¹ Orkashveilli suggests Lorimer bordered on racism,¹⁰² and Koskenniemi describes the language as striking and Lorimer’s divisions amongst the civilised, uncivilised, and barbarians, as crude.¹⁰³ But he offers Bluntschli as a moderate liberal and the first to write about universal human rights in a manual on international law. But this establishes the canon as inevitably born in racism.¹⁰⁴ Racism, support of slavery, and civilisational divisions were contested in their own contexts, so that even Bluntschli’s exclusionary ‘universality’ was recognisable in its time.

In the 1700s, contestation of racism and colonialism was widespread. Figures like Olaudah Equiano, Ottobah Cugoano, and into the 1800s, Mary Prince, Harriet Tubman, and José do Patrocínio led influential anti-slavery debates.¹⁰⁵ Paine, Diderot and Abbe Raynal denounced slavery and colonialism.¹⁰⁶ Abbe Raynal argued equality extended to all, including those enslaved from Africa. Frederick Douglass described the consistent resistance of enslaved groups across the Americas.¹⁰⁷ In the mid-1800s, just as eugenics and race-based distinctions were emerging as ‘science’, they were immediately rejected. Friedrich Tiedemann, followed by many others, argued there was no scientific basis for distinctions based on race.¹⁰⁸ Individually and collectively they suggest that from the outset, racism, pro-slavery or civilisational discourse, based on imperial practice or science was famously contested. The racialised aphasia required to not see this as part of the context is an equivocation of what some international legal scholars were choosing to write in support of imperial endeavours.

Mary Astell, in the 1700s, pointed to gendered intentional forgetting, writing that since men are historians, the actions of women are rarely chronicled and, when mentioned, are described as acting above their sex, as men in petticoats.¹⁰⁹ The nineteenth century saw the birth of modern feminism, feminist anti-slavery movements, and women such as Raden Adjeng Kartini writing about common rights alongside female political and military leaders including Rani Lakshmibai of Jhansi, one of the leaders of the 1857 Indian Rebellion.¹¹⁰ Women were also leaders of the transnational peace movement which led to 1899/1907 Convention for the Pacific Settlement of International Disputes.¹¹¹ Throughout the nineteenth century, these women, as well as feminist discourse more broadly, enlivened the political and legal world that international lawyers inhabited. Evidence of this is found in the texts of the period, Phillimore’s defence of women as ambassadors is a reaction to others such as Bluntschli who discount female political leaders not as incidences of state practice but rather of political harm.¹¹² This refusal to see women political actions as evidence of state practice is a tactic to reorder by forgetting names, qualifications, and contributions.

Gopal describes this era’s anti-imperial resistance but also how such resistance is subject to aphasia.¹¹³ It was not until the second half of the twentieth century that international law recognised anti-colonial resistance as constituting a right of self-determination beyond Europe. Amongst most nineteenth century international legal texts, rebellion established the rights of colonisers to extend and suppress, placing this view at the core of international law. But this position was not universal. Cobden, leader of the Anti-Corn Law League and the ultimate free trader, being the namesake of the Cobden-Chevalier Treaty, argued against gun-boat diplomacy and the extension of trade through imperialism, but international legal scholarship does not refer to his, or other, dissents.¹¹⁴ The international lawyer Frederic Harrison supported Urabi’s rebellion in Egypt, reformers in the 1866 Jamaica Committee, and was a member of the Anti-Aggression League (1882).¹¹⁵ Racial stereotypes suffuse his work, but he also challenged civilisational supremacy, confronting imperialism and pointing to the commercial interests that it underpinned.¹¹⁶ While he never entirely repudiated imperialism, he described the policy as evil, self-serving and inevitably leading to rightful rebellion while calling for a new form of international law based on duties to your neighbour, fellow-citizen and fellow human. But this has not led to any hagiographies. His form of politics, often in direct disagreement with governments and his contemporary canonical founders of modern international law, means he must be constructed as insignificant.¹¹⁷

Haiti, as Buck-Morss describes, is where multiple discourses meet.¹¹⁸ She argues Haiti and its revolution are crucial to eurocentrism’s construction.¹¹⁹ Haiti was the setting of ‘rivalry, cultural exchange and intellectual dialogue’ which mutually created Haitian and European views of the Atlantic world and ideas of black sovereignty.¹²⁰ Yet, Haiti and other events, such as the 1823 Demerara Uprising or the 1865 Morant Bay Uprising, are largely absent from nineteenth century texts nor modern accounts of the authors of the those texts. Omissions are not from their lack of import or widespread coverage, but rather they are part of what Sanghera describes as selective amnesia.¹²¹ The rise of slave-rebellions and anti-colonial uprisings in the nineteenth century establishes a global resistance discourse.¹²² Yet, such discourses are marginalised in contemporaneous scholarship on self-determination, sovereignty, or the lawfulness of imperialism but such omissions are not suggested as reasons to discount nineteenth century texts or their authors as authoritative. Processes of aphasia, evades their import and positions them at the bottom of hierarchies of practice. Recognising Haiti’s import would disrupt the narratives produced by nineteenth century international legal scholars. Their lack of rigour, their purposeful choices, questions the quality of scholarship and questions the credibility of ascribing to them with liberalism or universality and, potentially, the discipline itself.

International legal silences abound in nineteenth century international legal texts, including the roles of the Ethiopian, Ottoman or Chinese empires and the state practices of Siam, Japan, and the states of South America, except as part of civilisational mapping, though some recent scholarship does attempt to remember and insert those histories.¹²³ Each state resisted or threw off encroaching European colonialism, but their state practices did not take the forms constructed in the hierarchies of authority in nineteenth century international legal texts. States seeking to (re)assert self-determination consistently disputed the assumptions of European international law and made clear the extent of harm.¹²⁴ South American states resisted encroaching US hegemony and attempted to refract international law in their favour.¹²⁵ Imperialist resistance within Europe’s periphery, from Ireland to Poland to Bulgaria, was common. Each had their own complicated relationships within their masters’ imperialism, partaking in Empire but also building global anti-colonial resistance alliances, indeed Casement is an example of that dual existence.¹²⁶ Gopal describes this as ‘reverse tutelage’ where the metropole is educated by black and Asian voices in resistance, but that was resisted by some of the era’s international legal scholars.¹²⁷

As Clark describes civilisational divisions amongst international lawyers continued well into the twentieth century.¹²⁸ Bluntschli’s universality only extended to the Core and even here, just to white men, everyone else is marginal. But it serves a contemporary canonical purpose to date humanity-based rights to mid-nineteenth Century (European) international law rather than other contemporaries of Bluntschli, who wrote about shared humanity and rights but were not amongst this group. They are not canonical. Most, but not all, nineteenth and early twentieth century international legal texts were suffused with stereotypes and are valid reflections of an elite, pro imperial, male privileged context, but this localised explanatory environment is universalised and made omnipresent. It ignores or side-lines broader political discourse and thus cannot contextualise the writings of nineteenth century international lawyers, who were, in many cases, writing to support political stratagems as part of the apparatus of imperialism.

The hagiographies of great imperial international legal men remain intact despite shortcomings in their rigour. Neither TWAIL nor feminist scholarship succeeds in altering how nineteenth and early twentieth century European international lawyers’ contexts are constructed, and canon produced.¹²⁹ Rather, modern biographies re-constitute the hierarchy of sources and original (colonial, gendered) events. This is a two-pronged process which relies on the contemporary nineteenth century processes of forgetting to set the context while also reconstituting TWAIL and feminist scholarship in the present as dealing only with the margins and doing so while muddling historiographic methodologies. In combination this reconstitutes those same hagiographic figures as at the centre of the discipline. TWAIL scholarship through acts of radical remembering demonstrate contestation, yet mainstream accounts marginalise this work to footnotes, encounters, or graveyard sessions of conferences. As Mutua described in 2000, and arguably remains true, scholarship remains a ‘jurisprudence of “insider” groups and dominant global interests’ which remains intact despite the increasing volume, complexity, and insistences of TWAIL and feminist scholarship. Critically, however, these scholarships do produce the basis for (anti)hagiographies.¹³⁰

The hierarchies of authority and meaning that inform international legal histories suppress, and arguably actively forget, other valid contexts. Reflexive consideration of two contexts, the nineteenth century and the contemporary, is required. Nineteenth century textbooks were not inevitably racist or misogynist, there is nothing anachronistic in pointing that out. It is only in bowing to the aphasia and intentional forgetting of that era, and the international legal silences they produced, and then reconstituting them in the present that it appears preordained. Canon creation, reliant on hagiographical accounts, by its very nature, is more likely to perpetuate rather than disrupt processes of hierarchical production. This is exacerbated within law as ‘legal rhetoric [is] an obvious choice for hagiographers who needed to legitimize their narratives in addition to proving that they were true’.¹³¹ Using legal rhetoric establishes an idea of linearity over time and for international law, aids in creating a foundation for its canon. The connections between hagiography and canon creation mean that positional identification remains tied to the canon’s problematic figures.

Misogyny and racism were common, but international legal scholarship was at the forefront of colonialism, racism, and misogyny rather than neutral or reflecting universal views. Their texts were embedded with support for colonial ambitions rather than general political, legal or scientific debate. These are the foibles we allow those chosen for hagiographic depictions. Such individuals retain their status, in particular their role in establishing international law’s canon, but the canon is then imbued with their politics. Politics that in its context was not inevitable nor universal. We create saints out of (some) men but see no possibility of sainthood in others. The next sections look further at the mechanics of how.

5. Core, periphery and hagiographical canon creation

A. The core and the periphery in the contemporary era

Choices create a core within which biographical hagiographies are located and the canon established, and the periphery, or as Koskenniemi suggests, ‘the margins’ where everyone else resides.¹³² Core and periphery are political tools of geopolitics deployed, in what Elden describes as the interactions between law, governance, and imperialism.¹³³ Said traces how the core claims both knowledge of itself and superior knowledge of the margins while using concepts, assumptions, and discursive practices to produce and interpret the non-European world as a space absent knowledge.¹³⁴ Chakrabarty and Dirlik both demonstrate the possibilities of de-centred histories in transforming contexts.¹³⁵ The introduction to The Oxford Handbook of the History of International Law sets itself as a departure in international legal history from Eurocentrism.¹³⁶ But has a departure occurred? At least two elements must exist before that can take place. First, the core’s racism, misogyny, and support for imperialism and the continued ramifications for the canon must be confronted. Second, a new (anti)hagiographic discourse that replaces encounters as per nineteenth century travel literature must occur.

At the periphery, international law orders, envelops, disciplines, and regulates, including in the assembling of scholarship. Alter argues ‘Western-centrism is a pathology that transcends any one discipline, and it goes by many names, most of which have negative connotations. For developing countries, Western centrism is a form of imperialism’.¹³⁷ The turn to history is – with the exceptions of TWAIL and feminism – the history of the core and within those histories, hagiography plays a specific part in creating hierarchies. Aphasia and intentional forgetting are presented as methodologically sound decisions unrelated to hierarchies of authority or international legal silences, contributions, events or names are evaded, so that present silences are unrelated to the discipline as it has evolved. Hagiographies’ limitations lie in their ‘overly positive accounts that ignore or minimise the negative experiences and weaknesses of people considered venerable but holistic views centring human experience including the legacy of work would provide franker accounts.¹³⁸

Knox and Spain Bradley explain racism’s ongoing presence in both international legal scholarship and the social and historical processes of the discipline’s racialisation.¹³⁹ Debates on the publication of racist articles reveal a continued acquiescence with contemporary harms and disciplinary structures that allow for ‘striking language’ while maintaining international legal silences.¹⁴⁰ Failures to disrupt racism can be hidden beneath good intention. The Oxford Handbook of the History of International Law is interesting, yet racism is mentioned only a handful of times and just in chapters dealing with Africa, India or Global South diplomats’ experiences in the 1960s and 1970s.¹⁴¹ It is still up to TWAIL scholars to raise racism, even though much racism originates and is sustained by the Core.

Koskenniemi describes excluding ‘marginal’ histories as a choice made for him, because they are peripheral and subject to administrative (colonial, misogynist) regimes and thus forgotten.¹⁴² Of course, Koskenniemi must tell the stories he chooses, and he does so well. But he makes a political choice within a legal methodology bound by wider discourses, and this goes underacknowledged. When coupled with briefly credited misogyny and racism explained away by context, which as the previous section shows are not inevitable but a choice, it renders unaskable questions of aphasia and intentional forgetting and renders radical remembering/forgetting unfeasible.¹⁴³ Women and indigenous populations are marginal if white European men are the core and the canon. Scholars choose what is marginal, scholars choose what is core, scholars choose the stories they tell, and the contexts and canons constructed.

Alter argues Eurocentrism continues because it is ‘easier to study’.¹⁴⁴ This ease endures when both subject and author emerge from the same space. Writing from the core, about the core, even if it is its ‘encounter’ with the periphery, is easier than decentring. Decentring requires disrupting the discipline’s self-understanding and its links to the histories of its canonical figures. Critiquing Eurocentrism must include piercing the extent of the core’s aphasia, rather than relying on hagiographic scaffolds that minimise continuing injury. Gopal describes Eurocentrism as claiming ideas and values which exist across cultures.¹⁴⁵ Such claims assume that only Europeans conceived of certain ideas, including international law, universality, resistance and rebellion, and ignores how the application of European values are Janus-faced, with one application domestically and another abroad, and constitutive of contemporary international law. Anti-imperialism is a key thread of European history and one that had a dialogical relationship with revolution, dissent, and revolt within the Periphery, such as in Casement’s example.

Eurocentric temporality, as Edelstein, Wheatley, and Geroulanos suggest, makes European time universal and unassailable.¹⁴⁶ Placing Eurocentrism in the past for fear of anachronism and/or political choice elides both its subsistence and side-lines TWAIL and feminism for politicising foundational temporalities. Within hagiography these temporalities bind the relationships between the author, the subject and the reader, and their contingent communication. Haskell argues dialogue, mediation, temporality, and contestation within texts and amongst other legal and non-legal texts contributes to subject choice.¹⁴⁷ Such dialogues connect hagiographies of European international lawyers to Halperin’s positional identification. Eurocentrism at the core remains, and the authors and subjects mirror each other reproducing disciplinary hagiographies. Albeit the readers never necessarily did, but the temporalities of the hagiography seek to push current scholars towards conservative replication and veneration, not transgression.

B. Establishing the canon

The ‘teachings of the most highly qualified publicists of the various nations’ are a useful starting point to consider the constituting of international law’s canon though hagiography.¹⁴⁸ Hagiographies create persistent assumptions that endure. Hagiography valorises its doyens and in international law, they are also its subsidiary sources. How these figures are constituted is critical. Famously, The Paquete Habana states that

the works of jurists and commentators who by years of labor, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.¹⁴⁹

On its face, this appears meritorious, though merit often results in gendered and racialised outcomes.¹⁵⁰ Merit inculcates a vision of an objective, rationale commentator since it is not for their speculations that their writings are chosen but rather their reputations.¹⁵¹ Yet this separation of objective fact from opinion, like hagiography from histography, particularly amongst scholars collating customary international law, is contestable. Not that international lawyers do not seek neutrality – it is a common claim – but law is contingent and choices, including by the most highly qualified publicists, are made.

The ‘invisible college’ are the ones we seek (or are told to seek) to emulate.¹⁵² Sivakumaran lists Bluntschli, Fiore, Hall, and Halleck as examples, arguing the discipline only ‘values those teachings’ that replicate their mode of academic being.¹⁵³ The Oxford Handbook of International Legal History has an alternative list of ‘portraits’. The book attempts to curtail its Eurocentrism but limits its success by relying on Eurocentric white male scholars and their encounters.¹⁵⁴ Amongst the ‘portraits’ there is one non-white person, Muhammad al-Shaybānī, and he lived well over a millennium ago and one women Bertha von Suttner.¹⁵⁵ The absence of South American, Japanese, Ethiopian or Chinese scholars from portraiture, even with the self-imposed choice of pre-1945 histories, suggests that a failure to fit the mould produced by the ‘romantic profession’ continues.¹⁵⁶ The choice of 1945 as an end of history means scholars from decolonised states cannot feature, (re)constituting a new set of hagiographies that are almost identical. An example, which could easily set with the other portraits, is the work of Elias on African international law.¹⁵⁷ Her work is sidelined because history is delineated as the period of colonial predominance when European scholars were co-constitutive. Coming from a decolonised state automatically excludes her and that deliberate construction of a temporality is a contemporary form of aphasia and intentional forgetting that relies on colonial history to exclude. International lawyers who co-constituted and legitimated colonial exploitation remain its key biographical interlocutors because of the dominance and oppression they helped create and sustain.

Orford argues that ‘international law is a common enterprise’ but in participating, the scholar ‘surrenders autonomy’.¹⁵⁸ Access to the common enterprise is restricted by resemblance to what Koskenniemi in the Gentle Civiliser of Nations, maintains were ‘a small number of intellectual assumptions and emotional dispositions’ of nineteenth century academics by ‘members of a ‘[r]omantic [p]rofession’.¹⁵⁹ Romantic, whether intellectual or nostalgic, is definitional. There is a distinct homosociality where cumulative practice reproduces scholars in the same mould.¹⁶⁰ Establishing a canon, including hagiographic methodologies, establishes a single mould where those who write the biographies and those subject to them mirror each other and reconstitute each other’s importance. What Morris calls a mirror image is created, is romanticised, becoming what new scholars must contort themselves to become.¹⁶¹ The parameters are defined by an incontestable portraiture of scholars and to question them or focus on their negative traits risks either being ignored or ousted from the homosocial invisible college.

Original acts of deliberate exclusion, or forgetting, are replicated in the ‘turn to history’ where portraiture reproduces the homosocial expectations of value. International legal biographical works often ignore positive steps of exclusion. The American Society of International Law forbade women from joining in 1906, not permitting membership until 1921.¹⁶² In the inaugural edition of the American Journal of International Law, Lansing discusses women’s inherent weakness.¹⁶³ Yet, by 1906 women were graduating from US Law Schools for thirty years. ASIL, at its 112th Annual Meeting posthumously granted membership to Jane Adams and Belva Ann Lockwood.¹⁶⁴ This is both redress and an admission that there were women, even in the strictures of the time, who deserved membership. Pillai argues that women still perform a vanishing act, much as Astell argued in the 1700s, in official international legal bodies and accounts.¹⁶⁵ These bodies, including the International Law Commission, our contemporary rank of highly regarded publicists, whose membership is 97% male.¹⁶⁶

Charlesworth, Chinkin, and Wright’s famous 1991 piece on feminism and international law includes an account of audience reception of their work, which still resonates.¹⁶⁷ The audience was discomfited, their ideas deemed unrealistic, and they were told to operate in the real world. But two other elements are telling. First, now everyone assumes that these three scholars only do feminism and are not ‘real’ international lawyers and second, they are a ‘sideshow’, a footnote and no more.¹⁶⁸ Feminists disrupts ‘real’ international law but are not allowed to go further, it is unreal, so it unfeasible. Harris Rimmer and Ogg, in their empirical study of academic publications in French and English, found that in the 1970s 0.1 per cent of international law articles were on women, gender or feminism, in the 2010s this was 1.9 per cent, scarcely mainstream and scarcely breaking into the invisible college as a topic suited to highly regarded jurists.¹⁶⁹ Anghie and Chimni make similar observations regarding TWAIL. The academic community is uncomprehending of TWAIL history and its aims as academic praxis and scholarship and, as they argue, when institutional resources are intertwined without recognition as ‘real’ international lawyers, TWAIL scholars are kept at the peripheries.¹⁷⁰ Both feminist and TWAIL scholarship occupy a liminal space where they are both acknowledged as important, yet their critique requires no shift in quotidian international law because their work is not ‘real’ nor do they occupy the ‘real world’. The inability to be ‘real’ can partly be explained by their scholarship base in criticism of international law’s hagiographed figures who they cannot emulate.

While ‘the writing of the jurists’ may not hold the position they once did, the ‘invisible college’ remains significant. As Sivakumaran suggests, ‘there are publicists and there are publicists’.¹⁷¹ Who is highly regarded remains tied to hagiographies. Women, those from the majority world, disabled and queer people, must be extraordinary and commit no academic or life sins. However, white cisgendered European men can overcome any foibles by constructing a particular historiographical context where questioning is anachronistic and resemblance to the hagiographical figures a central point of promotion. The very people who were excluded are re-excluded by bringing up their own exclusion and how exclusion was an active choice. But once you create the hagiographic mould of highly regarded theorists, they become all knowing, possessing answers that others do not and cannot acquire. Whether it is Bluntschli or the International Law Commission, their revelatory abilities are unavailable at any other geographical or temporal point. Producing hagiography and typifying particular figures as ideal has, as with much hagiography, a propagandising purpose. The anxiety of proving international law exists as a discipline requires a canon, but within international law it is taken a step further as formalised subsidiary source. This inter-relationship makes any attempts to disrupt international legal silences more difficult, any disruption may disturb not only the canon but also the law they produced.

C. Positional identification: the role of the (anti)hagiography

But what does it mean when the marginal joins the profession? How do they position themselves to succeed? Is there a possibility of disruption, of creating representation, is there space to establish positional identification that does not replicate what went before or can rupture, as Morris suggests, displaced critiques of power?¹⁷² (Anti)hagiographies create such spaces. TWAIL, feminist, and queer scholars produce sites of positional identification by following historiographic methodologies that create alternate sites of representational leadership by decentring, de-hierarchising, and de-valorising moments, texts, and individuals. By doing so, they show how that the narrative of marginality is unnecessary but also the potential for an (anti)hagiographic and perhaps then, an (un)canon of sorts that cracks the international legal silences constituted by aphasia and gendered intentional forgetting that produced the canonical hagiographical figures.

Racial aphasia and gendered intentionally forgetting do not cause erasure but produce hierarchies of authority and power that are difficult to dismantle. Dismantling enduring disregard requiring acts of retrieval and re-centring.¹⁷³ The paralysing of mainstream law by aphasia must be undone. Though, as Spivak cautions, acts of retrieval are not always sufficient given the processes inherent to subaltern structures.¹⁷⁴ The retrievals must disrupt the hierarchies of meaning and authority, or they too will marginalise. This is essential to Halperin’s positional identification. It was Foucault’s sexual politics of truth as a fixture of his political-academic ways of being that is essential. Fixing women, queer, and black stories into the strictures of existing hagiography would not alter harms, their mere presence may disrupt international law’s sociocultural communities, but they must not be co-opted into process of replication.¹⁷⁵

The dearth of examples beyond old dead white men or present well-networked elites results from a variety of processes including the tendency within hagiography towards the constitution of international legal silences. Existing hagiography replicates and reiterates identities while TWAIL, or feminism, lower down on the hierarchy of meaning and authority, causes only slight pause for acknowledgment. Alternate sites of positional identification remain other, outside the mainstream, for their deficiencies in methodological diligence. They are nice to have, but do not shift perceptions. There are already examples such as Becker Lorca Mestizo International Law: A Global Intellectual History that reorientates core and periphery.¹⁷⁶ Obregón’s work on creole interventions in international law, racial capitalism and peripheral international legal histories shows other canons that disrupt the ‘linear narrative that a European international legal system was unquestioned’ exist¹⁷⁷ Yet, there is a resource issue, to return to Anghie and Chimni’s point on TWAIL scholarship, if its academic praxis is not ‘real’ then the work required that Alter defined as ‘difficult’ is under resourced.¹⁷⁸ (Anti)hagiography as radical forgetting/remembering presents the potential for something else.

Koskenniemi argues that international law ‘is a European tradition in the same sense that wearing a tie at formal meetings is, Everyone can do it’.¹⁷⁹ Wearing a tie is the perfect analogy, though not as Koskenniemi intends. The wearing of a tie to appear formal and professional is a universalisation of a European tradition that is problematic in a similar way to international law. It elevates European custom as universal, silencing others. Its gendered character is problematic for female or queer scholars who can either not aspire to such formality or, if they choose to wear a tie, know that gendered stereotyping will accompany the act. So, they may choose to wear one as disruption or as part of their identity but will know their disorder will be understood. For those attempting to gain entry from the margins, such disruption or queering of a professional space risk one’s appearance of professionality. For those not from Europe, to be professional, to be ‘real’ they must reject their own forms of professional attire. As Māori MP Rawiri Waititi states ‘[i]t's not about ties it's about cultural identity mate’.¹⁸⁰ For those from working class backgrounds, the wearing of a tie comes as a price of access. For white European men of privileged backgrounds, the wearing of a tie is nothing more than something everyone can do. The coercion to wear one or to not wear one never enters their mind. Always returning to the men in their ties replicates the problem. The wearing of a tie is an invented tradition and one, like many similar traditions, that leads to silence when universalised. It is also a call back to early Christian women choosing to dress as men to access their vocation and women’s legal performance in drag to be accepted.¹⁸¹

Intersectional feminist legal methodology requires context, including negative outcomes to be confronted and not overlooked and set alongside positive interventions. Any international legal feminist (anti)hagiography must be attuned to the role those Western feminists play in maintaining racial and (neo)colonial structures and aphasia.¹⁸² A feminist socio-legal approach considers the collective actions of women as equally important to the work of one man’s individual endeavours.¹⁸³ (Anti)hagiographies must do the same. Warner’s work on the idealisation of women in history and myth, where women are put on pedestals not to be emulated but to be admired, is an important temper on hagiographic tendencies.¹⁸⁴ They must be perfect, they must emulate the canon’s individual endeavour and style, they must have their international law 1000% and if they had academic thoughts or ideas, they must always meet the gold standard (and must never have changed), they must be saints or fail. It is essential that requirements of exceptionality are not repeated, they too must be allowed their foibles. Indeed, foibles could be resituated as reflecting the reality of the messy academic rather than the ideal of canon.

(Anti)hagiographies should take a plethora of forms, reflecting the variety of context in which their subjects, their readers and authors are situated. Subject choice is related to the author’s positionality, their access to materials, their experiences of exclusion, their abilities to read across languages and histories, their exposure to comparative and interdisciplinary methodologies as well as their objectives, though, as outlined, this latter criterion is always the case. But space must be created to allow for a plurality of anti-hagiographies (including non-textual forms). There are several examples across this article. Halperin’s Foucoult C’est Moi, is a very personal example where the subject and author’s queerness is at the core, embracing the possibilities of queer theory to displace heterosexuality, hierarchy, and objectiveness as yardsticks of academic biography. The Oxford Encyclopaedia of Women in World History published in 2008, 7 years after women were declared marginal in The Gentle Civiliser of Nations, is full of examples of women in the nineteenth century involved with international law.¹⁸⁵ Otomo’s insertion of women into the Treaty of Westphalia, is a feminist hagiography speaking across time, undaunted by the limitations of historical context.¹⁸⁶ Feminist judgments projects, while not hagiographical, instead centring on the credibility of alternative accounts as feminist praxis, often contain within them legal histories that re-centre feminist concerns.¹⁸⁷ Feminist Judgments projects by their method inhibit anachronism. Nothing can be inserted into a judgment that did not exist in the same temporal space, but they present ucronic potentials possible if misogyny was not entrenched amongst elites.

What then is the (anti)hagiographic method? The following is not intended as a definitive list or to suggest each element must be present, indeed in the example that follows, they are not. But rather the list is a stepping off point. First, is that (anti)hagiography is a contingent act that is mediated and imagined, the relationship between author, reader, subject and context remain provisional and subject to continual revision, and that must be fore fronted. Second, and following from this, is that it is always subjective, even when set alongside other (legal) historiographic methods, the choices made must be centred. Third, non-linearity is nearly always present, and when set alongside a fourth method, feminist communication, means that (anti)hagiographies move across time. Fifth, radical forgetting/remembering will highlight the construction of contexts, and again the presence of choice. Sixth, re-orientating the public space, especially in canon creation, is critical, both dismantling what is public and what is private, but also taking up room and making someone heard/seen. Seventh, when invoked within an international legal context, decoloniality should be present. Eighth, given the heteronormative structures that suffuse international law, queering both as a method as well as recognition and celebration of queer contexts, is important. Finally, reconstituting contexts, including what is valued as real/unreal should underpin the writing and research into (anti)hagiographic subjects. In combination, each contribution to the constitution of an (anti)hagiography and the following example of Christine de Pisan, is intended to demonstrate how it may be gone about.

D. An (anti)hagiography: Christine de Pisan

Given my personal positionality, my (anti)hagiography is most likely to appeal to those who share some of that positionality and privilege. I do not offer the following account of Christine de Pisan as archetype, but a rehearsal for possibilities of (anti)hagiography that are contingent, and non-idealised. There are three aspects which are key to De Pisan: her contextual and contingent self-biography, the tensions she describes between her male and female identities, and her own hagiographical and utopian writings. De Pisan’s biographical accounts are fragmentary.¹⁸⁸ Interspersed across her political texts, they include accounts of her exclusion from higher education, her alienation from her gender through her reading of classical, canonical texts which produced self-loathing as a monstrous woman and her ultimate alienation from that canon.¹⁸⁹ Over the course of her writing, she builds an account of her re-interpretation of canonical texts, creating her own authorial personae. Importantly she references earlier self-descriptions, relating how new knowledge, experience, and consideration of other outstanding women – her hagiographies, which often speak across time and contest/rewrite the ‘canon’s’ depictions of women – builds a contextual autographical account that centres her ‘core of experience’ and contrasts with single authored masculine retrospective accounts.¹⁹⁰

She also holds a ‘tension between a female and male identity’ which includes the assumption of masculine tropes, in contemporary critique, to be in drag, in order to be accepted as an authoritative figure.¹⁹¹ De Pisan describes Tiresias and Iphis from Greek myth who shift genders, writing that she also shifted genders when she assumed the responsibilities of the household on her husband’s death but also in her role as educator, focusing on the ‘mutability and conflicted nature of the female teacher’s gender roles’.¹⁹² There is a clear binarity in de Pisan’s discourse but her shifting gendered personas and her accounts of the necessity of women to do so centres that as a core to her experience and echoes the contemporary experiences of women and queer academics who must fit into established personas – wearing ties or writing in a fixed way – to be accepted as authoritative.¹⁹³

The third element is juxtaposed across Cite de Dames ‘a form of ‘feminist’ utopia’ and Les Livres le Trois Vertus, a pragmatic account of how women must negotiate the world.¹⁹⁴ Both forms are also evident in her writings on Joan of Arc.¹⁹⁵ The intermix of utopian hope with pragmatic resolution is a form of activism which feminist (anti)hagiography could embody. A form that focuses on core experience, that situates itself within the sphere of gender identities and takes a utopian account in considering its subject and those who inspired them. As with de Pisan, this may be across texts, which build upon each other and reconsider earlier iterations, so there is no singular authoritative account but rather one where the contextual account of particular moments speaks across time to a wide range of readers.

De Pisan’s Cite de Dames, written in 1405, demonstrates the importance of women's political contributions to early modern European society. But extolling her work should not mean fitting her into the mould of Vitoria, born fifty years after her death, perpetuating the forced drag she argued against. Rather, in both her writing and her insistence of her worth as an educator and author that centres on her experiences, she provides an example of an alternative way of academic being.

As Nbozi Adiche writes, ‘women don’t need to be championed and revered; they just need to be treated as equal human beings’.¹⁹⁶ We must not replicate the notion that the fathers of international law are all knowing and have answers which ours and future generations do not possess. Rather, the current hierarchies of authority must be reconstrued and historical legal silences actively opened up to the cacophony of scholarship that clamours to be heard, as the start of a creating an (un)canon. It is here where (anti)hagiographies find their purpose. Only if we see and radically remember the disruptive, the peculiar, the radical, and the oppressed as canonical and as deserving of study and placing them amongst the much-furrowed histories of white European cis men can international law move forward with its histories.

6. Conclusion

International legal histories take hagiographic methods and produce international legal histories full of valorisation and nostalgia that displace critique as beyond methodological rigour. (Anti)hagiographies disrupt the interlocutors of modern international law by upsetting those histories. By unsettling contexts and bringing forth issues of racial aphasia and gendered intentional forgetting which constitute international legal silences, (anti)hagiographies disrupt what has gone before and the canon it produced. Writing histories of women, black or queer international lawyers (lawyers as a category to be disrupted) must bypass the urge to mimic past practice by passing over foibles, selectively choosing who is representative or using aphasia and international forgetting as tools of hagiography as canon production. Rather, radical forgetting/remembering must embrace the disruptive, the messy, the queer, the collective and the feminist amongst others and celebrate ‘otherness’ not as something to be made to act in drag and embraced by the Core but as something which makes loud what is silenced. The nine part (anti)hagiographic method proposed here is stepping off point that offers an invitation to open up international law’s canon for personal identification beyond the European men of the nineteenth century.

In repeatedly returning to Bluntschli and others for revelation, we use the past to define both the present and future of the discipline. This form of linearity prevents a radical (re)imagining of a future not tied to the colonial, patriarchal or heteronormative past. Futures where international legal silences, aphasia or intentionally forgetting are absent are possible without destabilising international law’s canon to the point of destruction, the (anti)hagiography is one way to achieve this. But it requires difficult work and the welcoming of scholarship presently side-lined as marginal or only slightly disruptive to the core canonical story of international law. It also requires positional identification to be a real possibility for all entering the profession.

Academic hagiography records accomplishments and are repositories of traditions and customs and form, within international law, a large swath of canon creation. But within this racial aphasia and gendered intentional forgetting buttress a hierarchy of meaning and authority that sustains past omissions and places barriers in the way of creating spaces for new individuals or groups. These marginalised groups are the sources of positional identification for those coming to the discipline. Aphasia and international forgetting are too large a price to pay to reassure anxieties about the realness of international law or to deepen the roots of its canon. If international legal scholarship is ever to confront the core’s history and depart from its Eurocentric story, confronting hagiography within international legal histories is essential. They are readily available subjects for (anti)hagiographical canon creation, and, as this article demonstrates, the methods that assist in writing those into the canon.

International legal academia’s public space is contingent. There is a place for (anti)hagiography in the discipline to retrieve, establish, and communicate sites of positional identification for all, but only if we shed our processes of constituting international legal silences. It must be possible to move beyond Bluntschli C’est Moi to a point where the (anti)hagiography becomes as essential as the hagiography. An (anti)hagiographical genre is needed that replaces aphasia and intentional forgetting with those that protested, argued, were rude, were proudly Queer, Feminist, or Black, were perhaps pugnacious and less than ideal, who were far from welcome at the genteel conferences of the nineteenth century and were all the better for that.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Early variations they were not always biographical. K Pechilis, ‘Hagiography’ in JP Sherma and R Khanna (eds), Hinduism and Tribal Religions. Encyclopaedia of Indian Religions (2021); SS Averintsev, ‘From Biography to Hagiography: Some Stable Patterns in the Greek and Latin Tradition of Lives, Including Lives of the Saints’ in P France and W St Clair (eds), Mapping Lives: The Uses of Biography (2012) 83.

2 R Paulin, ‘Adding Stones to the Edifice: Patterns of German Biography’ in P France and W St Clair (eds), Mapping Lives: The Uses of Biography (2012) 102, 114.

3 P France, ‘From Eulogy to Biography: The French Academic Eloge’ in P France and W St Clair (eds), Mapping Lives: The Uses of Biography (2012) 83.

4 Statute of the International Court of Justice (d) 33 UNTS 993, Art 38-1.

5 L Leão Soares Pereira and N Ridi, ‘Mapping the “Invisible College of International Lawyers” Through Obituaries’ (2020) 34 LJIL 67, 67–8.

6 HY Kang, ‘Is There (Should There Be) a Law & Humanities Canon?’ [2019] Law, Culture and the Humanities 3–5; See France (n 3) 83; see also as an example. R Giladi, ‘The Enactment of Irony: Reflections on the Origins of the Martens Clause’ (2014) 25 EJIL 847–48.

7 The phrase comes from: D Halperin, Saint Foucault: Towards a Gay Hagiography (OUP, 1995) 21.

8 K Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine’ [1989] University of Chicago Legal Forum 139.

9 D Thompson, ‘Through, Against and Beyond the Racial State: The Transnational Stratum of Race’ (2013) 26 Cambridge Review of International Affairs 133, 135. P Gopal, Insurgent Empire: Anticolonial Resistance and British Dissent (2019) 9.

10 M Murphy, Sick Building Syndrome, and the Problem of Uncertainty: Environmental Politics, Technoscience, and Women Workers (DUP, 2006) 65.

11 H Reardon-Smith, ‘The UnCanon: Radical Forgetting and Free Improvisation’ (2019) 6 Sound Scripts 13, 17.

12 See for example of all three, B Fassbender, A Peters, S Peter and D Högger, The Oxford Handbook of the History of International Law (OUP, 2012), 1081.

13 M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP, 2001) 2; M Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–1870 (CUP, 2021) 953, 443.

14 Halperin (n 7) 21.

15 For a different but further discussion of these forms see G Simpson, ‘The sentimental life of international law’ (2015) 3 LRIL 3. LJM Boer, ‘The Greater Part of Jurisconsults’: On Consensus Claims and Their Footnotes in Legal Scholarship’ (2016) 8 LJIL 1021.

16 M Nicholson, ‘Psychoanalyzing International Law(yers)’ (2017) 18 GLJ 441, 447.

17 Paolo Amorosa and Claire Vergerio, ‘Canon-Making in the History of International Legal and Political Thought’ (2022) 35 Leiden Journal of International Law 469; see also the broader symposium on ‘International Legal Theory: Symposium on International Thought and The Making of the Canon’ (2022) 35 Leiden Journal of International Law.

18 Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (n 13) 9.

19 P Kastner and E Roy Trudel, ‘Unsettling International Law and Peace-Making: An Encounter with Queer Theory’ ERRATUM (2020) 33 LJIL 911–13.

20 Thompson (n 9) 147.

21 J Butler, Gender Trouble: Feminism and the Subversion of Identity (2011) 187. Halperin (n 7) 44.

22 As Foucault is for Halperin. Halperin (n 7) 3.

23 Others have already outlined the worth of non-doctrinal analysis. See S Engle Merry, ‘International Law and Sociolegal Scholarship: Toward a Spatial Global Legal Pluralism’ (2008) 41 Studies in Law, Politics, and Society 149; Y Ōnuma, International Law in a Transcivilizational World (2017).

24 Leão Soares Pereira and Ridi (n 5) 67; Y Otomo, ‘Her Proper Name: A Revisionist Account of International Law’ (2014) 1 LRIL 149–50; A Riles, ‘The View from the International Plane: Perspective and Scale in the Architecture of Colonial International Law’ (1995) 6 Law and Critique 39; R Parfitt, ‘Fascism, Imperialism and International Law: An Arch Met a Motorway and the Rest is History … ’ (2018) 31 LJIL 509; C Norton Warren, Literature and the Law of Nations, 1580–1680 (2015); D Otto, ‘Introduction: Embracing Queer Curiosity’ in D Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (2017) 1.

25 Within global histories see GG Igers, QE Wang and S Mukherjee, A Global History of Modern Historiography (2008) 4–5.

26 GR Elton, The Practice of History (FB, 1967) 46.

27 H White, Metahistory: The Historical Imagination in Nineteenth Century Europe (Johns Hopkins University Press, 1974) 274.

28 Joan W Scott, ‘Gender: A Useful Category of Historical Analysis’ (1986) 91 The American Historical Review 1053, 1057.

29 Q Skinner, ‘Meaning and Understanding in the History of Ideas’ (1969) 8 History and Theory 3, 3.

30 A Orford, International Law and The Politics of History (2021) 6–7.

31 G Renard Painter, ‘A Letter from the Haudenosaunee Confederacy to King George V: Writing and Reading Jurisdictions in International Legal History’ (2017) 5 LRIL 7, 30.

32 Skinner (n 29) 49.

33 A Orford, ‘International Law and the Limits of History’ in W Werner, A Galán and M de Hoon (eds), The Law of International Lawyers: Reading Martti Koskenniemi (2017) 8. In contrast see M Arvidsson and M Bak McKenna, ‘The Turn to History in International Law and the Sources Doctrine: Critical Approaches and Methodological Imaginaries’ (2020) 33 LJIL 37.

34 Skinner argues against a ‘the cult of the fact’ that dismisses other dynamics around historical method. Quentin Skinner, ‘The Practice of History and the Cult of the Fact’ in Skinner (n 29) 8. Anecdotes are forms of experiential evidence and narrative that often are the only sources for exclusionary practices especially in the absence of socio-legal work on the profession.

35 For a variety of approaches to legal history beyond international law see A Musson and C Stebbings (eds), Making Legal History: Approaches and Methodologies (2012) 1–6.

36 Thompson (n 9) 135.

37 Murphy (n 10) 65.

38 Gopal (n 9) 9.

39 KJ Alter, ‘Visions of International Law: An Interdisciplinary Retrospective’ (2020) 33 LJIL 837, 857; Reardon-Smith (n 11) 18.

40 For an overview of critical approaches see BS Chimni, International Law and World Order: A Critique of Contemporary Approaches (2017) 249–310.

41 For an outline of its different forms see MA Rondolino, ‘Some Foundational Considerations on Taxonomy: A Case for Hagiography’ (2019) 10 Religions 538.

42 W Callewaert and R Snell (eds), According to Tradition: Hagiographical Writing in India (1996); T Head, Medieval Hagiography: An Anthology (2018). GD Bond and R Kieckhefer, Sainthood: Its Manifestations in World Religions (1990). HS Neale Premodern Sufi Writings (2017) 75.

43 France (n 3) 83; K Barndt, ‘Fordist Nostalgia: History and Experience at the Henry Ford’ (2007) 11 Rethinking History 379, 388.

44 See for one example, L Fairfield, ‘John Bale and the Development of Protestant Hagiography in England’ (1973) 24 The Journal of Ecclesiastical History 145, 150.

45 RG Monge, ‘Saints, Truth and the “Use and Abuse” of Hagiography’ in RG Monge, KPC San Chirico and RJ Smith (eds), Hagiography and Religious Studies: Case Studies in the Abrahamic and Dharmic Traditions (Bloomsbury, 2016).

46 F Dikötter, Dictators: The Cult of Personality in the Twentieth Century (Bloomsbury, 2019) 15, 89; A Greer, ‘Colonial Saints: Gender, Race, and Hagiography in New France’ (2000) 57 The William and Mary Quarterly 323, 328–9.

47 For a description of this process see M Grau, ‘Political Hagiographies’ (2019) 42 Louvain Studies 265.

48 Ibid, 266–73.

49 Greer (n 46) 325.

50 W Slater, ‘Relics, Remains, and Revisionism: Narratives of Nicholas II in Contemporary Russia’ (2005) 9 Rethinking History 53.

51 E Hobsbawm and T Ranger (eds), The Invention of Tradition (CUP, 1983) 1.

52 C Zamorano Llena and I Gilsenan Nordin, Redefinitions of Irish Identity: A Postnationalist Approach (Peter Lang, 2010) 1–3.

53 R Foster, The Making of Saints: Politics, Biography and Hagiography in Modern Irish History. And for another example in Israel see S Schmidt, ‘Hagiography in the Diaspora: Golda Meir and Her Biographers’ (2004) 92 American Jewish History 157.

54 I Christie, ‘A Life on Film’ in P France and W St Clair (eds), Mapping Lives: The Uses of Biography (OUP, 2012) 294.

55 D Cannadine, ‘The Context, Performance and Meaning of Ritual: The British Monarchy and the “Invention of Tradition” 1820–1977’ in Hobsbawm and Ranger (n 51)120.

56 Wotherspoon and Aldrich examine traditional compendiums of ‘great men’ but also non-Western concepts of gay, lesbian and queer lives in identifying subjects. G Wotherspoon and R Aldrich (eds), Who’s Who in Gay and Lesbian History: From Antiquity to the Mid-Twentieth Century (Routledge, 2020) viii–x.

57 JL Bishop, ‘They Kept Their Skirts on: Gender-Bending Motifs in Early Irish Hagiography’ in S Sheehan and A Dooley (eds), Constructing Gender in Medieval Ireland. The New Middle Ages (Palgrave Macmillan, 2013) 115, 116. For an understanding of how that unfolds in the present see Butler (n 21) 187.

58 M Pia Lara, Moral Textures: Feminist Narratives in the Public Sphere (Polity, 1998) 3.

59 K Ferres, ‘Gender, Biography, and the Public Sphere’ in P France W St Clair (eds), Mapping Lives: The Uses of Biography (2012) 303, 318.

60 S Lyons, ‘On Heroines, Heroine Worship and the Heroine in Feminism’ (2015) 26 Women a Cultural Review 462, 463.

61 Bishop (n 57) 116.

62 E Grosz, Time Travels: Feminism, Nature, Power (Duke University Press, 2005) 782.

63 JN Brown, ‘Translating Edward the Confessor: Feminism, Time, and Hagiography’ (2007) 43 Medieval Feminist Forum: A Journal of Gender and Sexuality 46.

64 Otomo (n 24) 150.

65 Brown (n 63) 52–3.

66 M Booth, May Her Likes by Multiplied: Biography and Gender Politics in Egypt (2001) 90, 102.

67 Pia Lara (n 58) 3.

68 Greer (n 46) 325.

69 E Sampson and V Tudela, Colonial Angels: Narratives of Gender and Spirituality in Mexico, 1580–1750 (2000) 1–14; L Brewer-García, ‘Hierarchy and Holiness in the Earliest Colonial Black Hagiographies: Alonso de Sandoval and His Sources’ (2019) 76 The William and Mary Quarterly 477, 478–9.

70 I Pace, ‘When Ethnography Becomes Hagiography: Uncritical Musical Perspectives’ in C Wiley and I Pace (eds), Researching and Writing on Contemporary Art and Artists (Palgrave Macmillan, 2020) 123, 124.

71 P Werbner, ‘Between Ethnography and Hagiography: Allegorical Truths and Representational Dilemmas in Narratives of South Asian Muslim Saints’ (2016) 27 History and Anthropology 135, 137.

72 G Bruce, ‘Hagiography as Monstrous Ethnography: A Note on Ratramnus of Corbie’s Letter Concerning the Conversion of the Cynocephali’ in GR Wieland, C Ruff and RG Arthur (eds), Essays in Honour of Michael W. Herren on his 65th Birthday (Brepols, 2006) 45.

73 Greer (n 46) 325, 328–9.

74 Ibid, 325, 324.

75 B Leavitt-Alcántara, ‘Holy Women and Hagiography in Colonial Spanish America’ (2019) 12 History Compass 717, 717.

76 Greer (n 46) 325, 340.

77 HC Deb. 5 (27 May 1909) c. 1409.

78 G Kearns and D Nally, ‘An Accumulated Wrong: Roger Casement and the Anticolonial Moments Within Imperial Governance’ (2019) 64 Journal of Historical Geography 1, 10–12.

79 R v Casement [1917] 1 K.B. 98; PR Mullen, The Poor Bugger’s Tool: Irish Modernism, Queer Labour, and Postcolonial History (OUP, 2012) 90–1.

80 Greer (n 46) 325, 341.

81 T Ranger, ‘The Invention of Tradition in Colonial Africa’ in Hobsbawm and Ranger (n 51) 211.

82 C Epstein, The Birth of the State (OUP, 2021) 257–9.

83 J Kreiner, The Social Life of Hagiography in the Merovingian Kingdom (CUP, 2014) 33.

84 Paulin (n 2) 110.

85 Ibid.

86 France (n 3) 85.

87 Ibid, 86.

88 T Carlyle, The Hero as Man of Letters: Lecture V (1840).

89 RW Emerson, Representative Men (Phillips, Sampson and Company, 1850).

90 Russell (n 61) 15–25.

91 Halperin (n 7) 3.

92 Ibid, 5.

93 Ibid, 6.

94 Ibid, 8.

95 Whether race is a late medieval, early modern or later invention is much debated. G Heng, The Invention of Race in the European Middle Ages (2018) 2–4.

96 N Serpell, The Old Drift (Hogarth, 2019) 97.

97 Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (n 13) 1–5.

98 See the discussion in S Moyn, The Last Utopia: Human Rights in History (Harvard UP, 2012) 11.

99 R Wildman, International Rights in Times of Peace Vol 1 (1850) 1–7.

100 J Lorimer, The Institutes of the Law of Nations, Vol 1&2 (1884) 97.

101 JC Bluntschli, The Theory of the State (1885) 29.

102 A Orakhelashvili, ‘The 19th-Century Life of International Law’ in A Orakhelashvili (ed), Research Handbook on the Theory and History of International Law (2011) 441.

103 Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (n 13) 42, 131.

104 Ibid (n 13) 113, 117.

105 O Cugoano, Thoughts and Sentiments on the Evil and Wicked Traffic of the Slavery and Commerce of the Human Species, Humbly Submitted to the Inhabitants of Great Britain in 1787 (1787); M Prince and T Pringle, The History of Mary Prince (1831); E Said, The World, the Text, and the Critic (Harvard UP, 1983) 39; O Oduro-Opuni, ‘German Abolitionism: Kotzebue and the Transnational Debate on Slavery’ (2019) 10 Journal of Transnational American Studies 237; LC Jennings, French Anti-Slavery: The Movement for the Abolition of Slavery in France, 1802–1848 (CUP, 2000).

106 T Paine, ‘Letter to the Abbe Raynal’ in MD Conway (ed), The Writings of Thomas Paine Volume II 1779–1792 (1894) 75; A Thomson, ‘Colonialism, Race and Slavery in Raynal’s Histoire Des Deux Indes’ (2017) 2 Global Intellectual History 251; C Hunting, ‘The Philosophes and Black Slavery: 1748–1765’ (1978) 39 Journal of the History of Ideas 405.

107 Gopal (n 9) 3–5.

108 Anti-eugenics figures such as Lester Frank Ward, G. K. Chesterton, Franz Boas opposed the use of eugenic science as ‘fact’. See JE Jones, ‘“On the Brain of the Negro”: Race, Abolitionism, and Friedrich Tiedemann’s Scientific Discourse on the African Diaspora’ in G Mischa Honeck, M Klimke and A Kuhlmann (eds), Germany and the Black Diaspora: Points of Contact, 1250–1914 (Berghahn, 2016) 134.

109 M Astell, The Christian Religion (1907) 17–19.

110 See also de Gouge or Wollstonecraft. I Tallgren, Portraits of Women in International Law: New Names and Forgotten Faces? (OUP, 2023); R Adjeng Kartini (AL Symmers (tr)), From Darkness Into Light (Toubeke, 2018).

111 1899/1907 Convention for the Pacific Settlement of International Disputes.

112 R Phillimore, Commentaries Upon International Law Vol II (1854) 170–1; See Bluntschli (n 101) 29.

113 Gopal (n 9) 3–5.

114 For an account of the debates on imperialism and free trade see: A Zevin, Liberalism at Large: The World According to the Economist (Verso, 2019) 84; M Matikkala, Empire and Imperial Ambition: Liberty, Englishness and Anti-Imperialism in Late Victorian Britain (IB Tauris, 2011) 21.

115 D Bowie, Our History: Roots of the British Socialism Movement (London Socialist History Society, 2014) 29–30. Gopal (n 9) 156–9. He also supported Polish and Italian independence and the Paris Commune.

116 F Harrison, ‘The Emancipation of Women’ (1891) 298 Fortnightly Review 437; Gopal (n 9) 157–9.

117 F Harrison, ‘The Transvaal Crisis’ Positivist Review; F Harrison, ‘The Modern Machiavelli’ (1897) 247 The Nineteenth Century: A Monthly Review 462. See further for the context HS Jones, ‘The Victorian Lexicon of Evil: Frederic Harrison, the Positivists and the Language of International Politics’ in T Crook, R Gill and B Taithe (eds), Evil, Barbarism and Empire (Macmillan, 2011) 128; Gopal (n 9) 160.

118 S Buck-Morss, Hegel, Haiti, and Universal History (University of Pittsburgh Press, 2009) 12.

119 Ibid, 12, citing P Franklin Tavares, Hegel, Critique de l’Afrique: Introduction aux études critiques de Hegel sur l’Afrique (1990).

120 JD Webb, Haiti in the British Imagination: Imperial Worlds, 1847–1915 (OUP, 2021) 139; L Colley, The Gun, The Ship and the Pen (Profile, 2021) 206.

121 S Sanghera, Empireland: How Imperialism Has Shaped Modern Britain (Penguin, 2021) 73.

122 For an outline of the context of these resistances see: G Bhattacharyya, S Virdee and A Winter, ‘Revisiting Histories of Anti-Racist Thought and Activism’ (2020) 27 Identities: Global Studies in Culture and Power 1.

123 For deeper engagement in each of these examples see R Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (2019); RS Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire During the Nineteenth Century’ (2004) Journal of World History 445; RP Anand, ‘Family of “Civilized” States and Japan: A Story of Humiliation, Assimilation, Defiance and Confrontation’ (2004) Studies in International Law and History 24.

124 This includes 50–100 million Native Americans who died as a result of imperial rule, 20 million Africans who died in the slave trade and the 100 million Africans lost to the continent, the 29 million deaths in India between 1877 and 1902. I Ness and Z Cope, The Palgrave Encyclopaedia of Imperialism and Anti-Imperialism (Palgrave, 2016) vii.

125 See further: A Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (CUP, 2015); J Pablo Scarfi, The Hidden History of International Law in the Americas: Empire and Legal Networks (OUP, 2017); L Obregón, ‘Between Civilisation and Barbarism: Creole Interventions in International Law’ (2006) 27 Third World Quarterly 815.

126 S Howe, Ireland and Empire: Colonial Legacies in Irish History and Culture (OUP, 2002) 43.

127 Gopal (n 9) 8; T Harper, Underground Asia: Global Revolutionaries and the Assault on Empire (Harvard UP, 2020).

128 M Clark, ‘A Conceptual History of Recognition in British International Legal Thought’ (2017) 87 British Yearbook of International Law 18, 52–4.

129 A recent example of a pertinent debate is H de Waele, ‘A New League of Extraordinary Gentlemen? The Professionalization of International Law Scholarship in the Netherlands, 1919–1940’ (2020) 31 EJIL1005; JE Nijman, ‘Marked Absences: Locating Gender and Race in International Legal History’ (2020) 31 EJIL 1025.

130 M Mutua, ‘Critical Race Theory and International Law: The View of an Insider-Outsider’ (2000) 45 Villanova Law Review 841, 849.

131 Kreiner (n 83) 36.

132 Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (n 18) 9.

133 S Elden, The Birth of Territory (University of Chicago Press, 2013) 322–3.

134 EW Said, Orientalism: Western Conceptions of the Orient (Penguin, 2014) 31–49.

135 D Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton UP, 2000) 27; A Dirlik, ‘History Without a Center? Reflections on Eurocentrism’ in E Fuchs and B Stuchtey (eds), Across Cultural Borders: Historiography in Global Perspective (Rowman & Littlefield, 2002) 247.

136 Fassbender et al (n 12) 2.

137 Alter (n 39) 848.

138 G Mitchell and G Howcroft, ‘Hagiography: Current and Prospective Contributions’ (2015) 25 Journal of Psychology in Africa 390, 394.

139 R Knox, ‘Civilizing Interventions? Race, War and International Law’ (2013) 26 Cambridge Review of International Affairs 111; A Spain Bradley, ‘Human Rights Racism’ (2019) 32 Harvard Human Rights Journal 1.

140 A O’Donoghue and H Jones, ‘The Jamestown Massacre: Rigour & International Legal History’ (Critical Legal Thinking, 24 August 2017) <https://criticallegalthinking.com/2017/08/24/jamestown-massacre-rigour-international-legal-history/>.

141 Fassbender et al (n 12) 1214.

142 Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (n 13) 9.

143 Koskenniemi (n 13) 507, 344.

144 Alter (n 39) 849.

145 Gopal (n 9) 14.

146 D Edelstein, N Wheatley and S Geroulanos (eds), Power and Time: Temporalities in Conflict and the Making of History (2020) 2, 12.

147 JD Haskell, ‘The Choice of the Subject in Writing Histories of International Law’ in J d’Aspremont, T Gazzini, A Nollkaemper and W Werner (eds), International Law as a Profession (2017) 244, 262

148 See Leão Soares Pereira and Ridi (n 5).

149 The Paquete Habana, 175 US 677 (US Supreme Court, 8 January 1900) 700.

150 B Bagilhole and J Goode, ‘The Contradiction of the Myth of Individual Merit, and the Reality of a Patriarchal Support System in Academic Careers: A Feminist Investigation’ (2001) 8 European Journal of Women’s Studies 161, 176.

151 A Orford, ‘Scientific Reason and the Discipline of International Law’ in J d’Aspremont, T Gazzini, A Nollkaemper and W Werner (eds), International Law as a Profession (CUP, 2017) 93.

152 O Schacter, ‘The Invisible College of International Lawyers’ (1977–78) 72 Northwestern University Law Review 217; S Villalpando, ‘The “Invisible College of International Lawyers” Forty Years Later’ (2013) ESIL Conference Paper Series.

153 S Sivakumaran, ‘The Influence of Teachings of Publicists on the Development of International Law’ (2017) 66 ICLQ 1, 2. Another group are European Journal of International Law special editions, Anzilotti, Verdross, Kelsen, de Visscher, Schücking, Martens and Lorimor the Leiden Journal of International Law published two non-European scholars as counterbalance.

154 A Martineau, ‘Overcoming Eurocentrism? Global History and the Oxford Handbook of the History of International Law’ (2014) 25 EJIL 329.

155 MA Baderin, ‘Muhammad al-Shaybānī’ in Fassbender et al (n 12) 1081; Simone Peter ‘Bertha von Suttner’ in Fassbender et al (n 12) 1142; Fassbender et al (n 12) 2.

156 O 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.

157 TO Elias, The Nature of African Customary Law (Manchester UP, 1956); TO Elias, Africa and the Development of International Law (Springer, 1972).

158 A Orford, ‘Feminism, Imperialism and the Mission of International Law’ (2002) 71 Nordic Journal of International Law 275, 291.

159 Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (n 13) 2–3.

160 SR Bird, ‘Welcome to the Men’s Club: Homosociality and the Maintenance of Hegemonic Masculinity’ (1996) 10 Gender & Society 120, 130.

161 R Morris (ed), Can the Subaltern Speak? Reflections on the History of an Idea (Columbia UP, 2010) 13; Sivakumaran (n 153); G Hernández, ‘The Responsibility of the International Legal Academic: Situating the Grammarian in the “Invisible College”’ in J d’Aspremont, T Gazzini, A Nollkaemper and W Werner (eds), International Law as a Profession (CUP, 2017) 160.

162 For an outline of this history see B Allen Coates, Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century (2016) 74–5.

163 R Lansing, ‘Notes on Sovereignty in a State’ (1907) 1 AJIL 105–28, 115.

164 American Society of International Law, ‘ASIL History’ (ASIL) <https://www.asil.org/about/history>.

165 P Pillai, ‘Women in International Law: A Vanishing Act?’ (Opinio Juris, 3 December 2018) <https://opiniojuris.org/2018/12/03/women-in-international-law-a-vanishing-act/>.

166 See also N Grossman, ‘Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts’ (2012) 2 Chicago Journal of International Law 647.

167 H Charlesworth, C Chinkin and S Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 4613.

168 H Charlesworth, ‘Alienating Oscar – Feminist Analysis of International Law’ (1993) 25 Stud. Transnat’l Legal Pol’y 1, 14. See also F Ní Aolain, ‘Feminism Facing International Law’ (2015) 22 European Journal of Women’s Studies 457.

169 S Harris Rimmer and K Ogg, ‘Introduction’ in S Harris Rimmer and K Ogg (eds), Research Handbook on Feminist Engagement with International Law (Edward Elgar, 2019) 1–3, 5–10.

170 A Anghie and BS Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ (2003) 2 Chinese JIL 77, 87.

171 Sivakumaran (n 153) 2.

172 Morris (n 16) 13.

173 Thompson (n 9) 147.

174 Murphy (n 10) 65; G Spivak, ‘Can the Subaltern Speak’ in Morris (n 16) 21.

175 Halperin (n 7) 6.

176 See Becker Lorca (n 125); See also JP Scarfi, The Hidden History of International Law in the Americas: Empire and Legal Networks. United Kingdom (OUP, 2017).

177 Liliana Obregón, ‘Between Civilisation and Barbarism: Creole Interventions in International Law’ (2006) 27 Third World Quarterly 815.

178 Anghie and Chimni (n 170) 77.

179 M Koskenniemi, ’International Law in Europe: Between Tradition and Renewal’ (2005) 16 EJIL 113, 114.

180 Eleanor de Jong, ‘Māori MP Rawiri Waititi Ejected from New Zealand Parliament in Necktie Row’ The Guardian (Queenstown, 9 February 2021).

181 M Davies, ‘The Law Becomes Us: Rediscovering Judgment’ (2012) 20 Feminist Legal Studies 167, 171–6.

182 V Nesiah, ‘Toward a Feminist Internationality: A Critique of US Feminist Legal Scholarship’ (1993) 16 Harvard Women's Law Journal 189.

183 Otomo (n 24) 149.

184 M Warner, Monuments and Maidens: The Allegory of the Female Form (University of California Press, 1987) xx.

185 BG Smith, The Oxford Encyclopaedia of Women in World History Volume 1 (OUP, 2008). The Women in International Law Network and International Law Grrls have further lists.

186 Otomo (n 24) 150.

187 T Lavers and L Hodson, Feminist Judgments in International Law (Bloomsbury, 2019); M Enright and J McCandless, Northern/Ireland Feminist Judgments (Bloomsbury, 2017); BJ Crawford, K Stanchi, LL Berger, G Appleby, SF Appleton, R Astoria, S Cowan, R Dixon, T Lavers, AL McArdle and E McDonald, ‘Teaching with Feminist Judgments: A Global Conversation’ (2017) 38 Law & Inequality 1.

188 R Krueger, ‘Christine’s Anxious Lessons: Gender, Morality, and the Social Order from the Enseignements to the Avision’ in M Desmond (ed), Christine de Pisan and The Categories of Difference (University of Minnesota Press, 1998) 16, 16–17.

189 Ibid, 16, 29.

190 Ibid, 16, 17, 28.

191 Ibid, 24–5. See also women in (legal) drag in the work of Davies (n 181) 172–4. For contemporary discussion of a similar phenomenon see Butler (n 21) 137.

192 Krueger (n 188) 25. In Greek mythology, Tiresias was a blind prophet in Thebes who transformed into a woman for a period, Iphis was born into a female body, but lived as a boy. Before marrying Ianthe, a woman, he was transformed into a bodily male form.

193 De Pisan also rejected the depictions of women within courtly love. J Kelly, ‘Early Feminist Theory and the “Querelle Des Femmes”, 1400–1789’ (1982) 8 Signs: Journal of Women in Culture and Society 4, 9–13.

194 Krueger (n 188) 28; C de Pisan, R Kingston and S Bourgault (eds), I Hardy (tr): The Book of the City of Ladies and Other Writings (Hackett, 2015) 19; C de Pisan and S Lawson, Annotations of the Treasure of the City of Ladies: Or the Book of the Three Virtues (Penguin, 2003) 240.

195 C de Pisan (ed), AJ Kennedy and K Varty (trs), Ditié de Jehanne D’Arc (Society for the Study of Mediaeval Languages and Literature, 1977); See also C de Pisan (K Greed (ed)), The Book of Peace (Penn State University Press, 2008).

196 C Nbozi Adiche, Dear Ijeawele. Or a Feminist Manifesto in Fifteen Suggestions (Knopf, 2017) 29–30.