- Melbourne Law School - Theses
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ItemConstitutionalism as Postwar International LawSaunders, Anna Joy ( 2020)This thesis inquires into the significance of the histories of constitution-making in Germany and Japan for international practices of constitution-making after conflict, and for the discipline of international law. It argues that, in offering constitutionalism as a solution to the problems of civil war and conflict in the decolonised world, contemporary scholarship on international law and constitution-making draws on a tradition that was developed during the post-World War II era in relation to the occupations of Germany and Japan. That tradition represents a rejection of material accounts of the causes of war and imperial aggression, and more radical visions of economic redistribution and political self-determination. In invoking these histories, international legal scholars reproduce an understanding of constitutional forms as an object of legal analysis and of technical reproduction, distinct from broader economic and political choices about the government of a society and about the international legal order in which that society exists. By exploring this tradition, this thesis seeks to denaturalise internationally-directed constitutional transformation, paired with economic liberalisation, as a technique for managing the postwar state. The Introduction sets out the paradox of the internationalisation of constitution-making, on the one hand, and the idea of constitutions as a lawful means of governing a public, on the other. It gives an account of the method of inquiring into the way the discipline of international law has sought to invoke the histories of constitution-making in Germany and Japan to resolve this paradox, which I term ‘discipline as method’. Chapter 1 describes the field of international law and constitution-making, and sets out the significance of the histories of constitution-making in Germany and Japan for the discipline of international law. Chapter 2 explores the emergence of a tradition of constitutional thought in international law in the postwar period, articulated in opposition to economic and material accounts of empire, by reference to the work of three lawyers: Quincy Wright, Ernst Fraenkel and Carl Friedrich. Chapter 3 describes the conduct of the Allied occupations of Germany and Japan, reading Allied practices and debates, and the making of constitutions, through competing ideas of the requirements of peace in the aftermath of imperial aggression. The thesis concludes by reflecting on what knowledge of this tradition offers for the discipline of international law.
ItemA conceptual history of recognition in international lawClark, Martin ( 2015)This thesis presents a conceptual history of recognition. It examines the development of ideas about the nature and meaning of recognition in the writings of British jurists from 1800–1950. After introducing recognition as a recurring metaphysical and ontological problem of international law and ordering, and explaining the focus on British juristic writings (Introduction), this thesis outlines a methodology for writing the history of concepts in international law (Chapter Two). While recent work in international legal history demonstrates a new attentiveness to the problems of historiography, efforts to grapple with these problems have rarely involved direct engagement with historical theory. In urging just such an engagement, this thesis adapts the themes, insights, and methods of conceptual history to the examination of concepts in international law. Conceptual history investigates the development of ‘basic concepts’: essentially contested ideas that are indispensable for political and thought and action throughout a period of time, within a national-linguistic society. This thesis adapts this methodology to guide a focus on juristic texts and their contexts. This forms the thesis’s first contribution to the field, specifically methodological debates in international legal history. It shows that historical theory is of real use in understanding and improving our attempts to grapple with the historiographical problems of international law. The thesis’s second contribution takes the form of a conceptual history of recognition (Chapter 3). In examining how recognition became a foundational idea in international law, as reflected in one important national tradition of juristic thought, this history shows how recognition was used to establish hierarchies of political communities and control entry into international society. Nowhere is this plainer than in the writings of British jurists in the context of the rise and fall of the British Empire. This development proceeded in four strands. In the first strand (1800–1880), generalised accounts of the criteria of recognition that are fixated almost solely on intra-European diplomatic disagreements gradually emerge. During the second strand (1871–85) recognition begins to incorporate ideas of Christianity, civilisation and progress to exclude non-European political communities from entry into the international community. The third strand (1885–1914) furthers this progress-orientation into the period of late colonialism and the ‘scramble for Africa’, shifting the focus of recognition to the technicalities of government and territorial control and, eventually, to a state-centric account that normalises civilisational inferiority into ‘difference’. With the fourth and final strand emerges (1915–50), recognition becomes a basic concept in international law, reflected in intense debates over its meaning and its use to advance or undermine a range of political projects within the League of Nations, including the universalisation of international law, changing modes of imperialism, and the constraint of state action through law. The thesis concludes with brief reflections on why British thinking turns away from recognition in the 1950s. With the collapse of the British Empire, the establishment of the United Nations, recognition is no longer a useful frame for exclusion and marginalisation, as the decolonising world turns to a new international law and self-determination.