Justice Among Nations: A History of International Law by Stephen C. Neff (review)

“Justice,” replied Thrasymachus to Socrates in Plato’s Republic, “is simply the interest of the stronger.”¹ The winner writes history and defines justice, no matter your sophistry: “your nurse evidently neglects to wipe your nose and leaves you sniveling.”² For Thrasymachus, winning is all, leaving us with that era’s often cited realist adage from Thucydides in the Milean dialogue during the Peloponnesian Wars: “[T]he standard of justice depends on the equality of power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept.”³

Stephen Neff’s new book, Justice Among Nations: A History of International Law, questions that aphorism, while unabashedly offering a theatrical drama of the human species in its “quest throughout human history, to bring order and stability to international relations on the basis of the . . . rule of law.”⁴ This story is one of the greatest endeavors of humankind and, in Neff’s opinion, is played out in arenas of power from non-Western sources of doctrine and practice in ancient Egypt, Mesopotamia, India, and China to present post-Cold War globalization. In an article entitled A Short History of International Law published four years earlier, Neff admits how daunting this task is, for we are “still only in the earliest stages of the serious study of international legal history.”⁵

After a brief overview, this essay will summarize each of the book’s four parts and then reflect critically on a few key themes that come alive in this important work.

I. OVERVIEW

Neff is Reader in Public International Law at the University of Edinburgh. He covers his history in 483 pages of text in four parts, forty pages of bibliographical essays, and seventy-six pages of endnotes. His narrative, both dark and hopeful, follows the meandering pathways that justice among nations has taken. The subtitle calls this journey a history of international law, first noted as an intellectual discipline during the Warring States Era (481–221 bc) in China from unwritten Confucian ideas on the ethics of nonintervention and harmony in hierarchical rule. The primary source for these ideas was found in fragments from writings of Mencius.⁶ Both rule by law and nonintervention between states are recurring themes for Neff’s measure of the advance or retreat of expectations identified as international law, a term first used by Jeremy Bentham in place of the more ambiguous “law of nations.”

Describing his history of international law as the “scientific study of the emergence of order out of chaos,” Neff asks the usual questions from legal philosophy: where does law come from, has it always existed? Who makes it, why is it obeyed? Is it possible to have a system of any kind between states when there is no supranational authority to recognize or promulgate and enforce rules? Where do we turn to find evidence of past and present customs and practices that constitute such law among “states”? What is a “state”? For the author, international law is not so much a list of rules or desirable codes of behavior among these “states” as it is a response to the tension between power and justice over thousands of years of “devising answers . . . to these questions (and similar ones) over the course of human history.”

With many scholarly works to his credit,⁷ Neff admits that we are at the very beginning of better histories of international law. In a close reading, he seems to sympathize with Finnish scholar Martti Koskenniemi’s view that the history of international law is a history of many separate histories.⁸ These histories do not necessarily show progressive development of better international law.

Neff likens the four parts of his long story to a journey of a ship as it changes its riggings to sail through “different seas and weathering various storms more or less intact. . . . It is a remarkable journey...