African International Legal Histories – A Topic Where, For Whom, and Why Not? A Retrospective

What is a topic in international law scholarship? Any answer will most probably include the term “relevance”, perhaps also a reference to some “general interest”. Such a (rather quantitative) answer will evaluate what international law scholars actually write about at a given time. It will conclude from a list of publications that some topics have been considered more relevant than others by international law scholars, as they wrote more about the former topics and less (or nothing) about the others which subsequently may be considered less relevant – even “irrelevant”.

Another way of responding to the question may include a geographical aspect – the question then changes into “what topic is relevant where?” This question occurred to me when I wrote my article “African International Legal Histories” (2018) in response to a call for papers which asked “why it is that we write the [international legal] histories we write” and “what questions we fail to explore”.

In response to these important questions I chose a decidedly geographical approach. Even a quick look at the geographical focus of scholarly output on international law will show that the research focus is on Europe and (North) America – and the continent considered least is Africa. This is also true for research on the history of international law.

Thus, the question becomes: If “we … fail to explore” international legal histories having taken place in Africa’s past, is this because 1) they did not exist, or 2) because researchers found them not relevant, or 3) – and this is decisive, too – because researchers lack the means, i.e. the sources, to analyze these histories?

Unsurprisingly, the first answer is evidently wrong, even though in response to my article I received surprised reactions for the fact that a well-reputed law journal would fill some 20 pages with considerations about “African International Legal Histories”. It appears that there are in fact some who do believe in answer no. 1.

The second answer, claiming that researchers find these histories not relevant, deserves more attention because considerations of relevance determine which topics researchers devote their time to. In their research on the history of international law, legal scholars – general historians rarely write about the history of international law, citing their lack of specific disciplinary knowledge – have a notable tendency to ‘justify’ their research with an analysis of the “present-day relevance” of their topic. Such a ‘presentist’-focus, in turn, decidedly shapes the historical research-agenda on Africa. The ‘African part’ of the history of international law is mostly limited to topics related to European colonialism, including ‘the acquisition of Africa’ since the 1880s and questions of ‘state succession’ and international borders following independence starting in the 1950s (uti possidetis). However, given such a relevance-determining focus, those histories of international law in Africa not immediately pertaining to present-day issues are barely considered worth an analysis.

After all, some might ask, are there histories beyond the narrative frame set by European colonialism? What came before colonialism? Decades ago already, the historian Jacob Ade Ajayi succinctly described colonialism as An Episode in African History (1969), thus inviting researchers to explore other ‘episodes’. There is ample evidence which attests to “African International Legal Histories” over two millenia (e.g. the Red Sea area and Ethiopian-Arab relations; the Indian Ocean rim; and finally, the case of nineteenth-century Ethiopia). By further pursuing this research, international law scholarship can contribute to a wider tendency in the social sciences to “provincialize Europe”, thus stripping the European histories of international law of their perceived ‘naturalness’. All this is far more pertinent than any assumed “present-day relevance” of a given historical topic.

There was a third possible answer to the question of why “we … fail to explore” African international legal histories; it concerned the lack of necessary means, that is: the sources. While most accounts of the history of international law adhere to a positivist reading of written sources that would allow for direct access to ‘history’, especially those accounts mentioning Africa make explicit their regret about the paucity of (written) sources about pre-colonial African institutions. Indeed, researchers interested in these institutions face the challenge that apart from Amharic, Coptic (-Demotic), and Arabic texts, there are barely any documents written by Africans that could give insights into the continent’s past before the arrival of Arab and (later) European visitors and empire-builders of the nineteenth century. Thus, the question is: Is the writing of African international legal histories possible at all, if the practices and customs applied in the handling of inter-state/-polities-affairs between African peoples and beyond, however defined, are not recorded? Furthermore, in cases where sources are available, how should researchers, predominantly working in European languages (mostly English), describe and translate the institutions they are analyzing in historical Africa? Can (or must) the European terminology used by historians and legal scholars alike be replaced by other languages in order to avoid conceptual anachronism and linguistic imperialism? Are even careful transliterations, transcriptions, translation of legal terms in a given culture and practice enough to transcend European legal concepts and their terminologies? It seems to be a matter of academic integrity to admit that conclusive answers to these questions have not yet been found. Rather, they have to be sought in each individual case of a source (written or other) requiring critical analysis.

Once again: Who finds African International Legal Histories “relevant” – even though we have thus far “fail[ed] to explore” this topic in the necessary depth? Scholars rarely have a chance to interact with their readers beyond (peer) reviews and conferences. ‘Sales numbers’ are certainly not applicable for a journal article to ascertain its “relevance” through popularity. However, modern IT-tools of academic journal-websites offer metric data that pretend to indicate the number of “full text views” and “abstract views” (excluding of course those who accessed a hard copy version of the text). Over the last year I followed the curve of these two types of “views” of my online-readers and I noted a remarkable difference between them. During certain months, the ratio between “full text views” and “abstract views” was approximately 1:10 (e.g. 380:3420 in January 2020). Evidently, I cannot conclusively explain this ratio and its interesting incongruity with the metrics of the other contributions to the “Symposium on the ‘Trajectories of International Legal Histories’” in the same journal issue. However, over the last twelve months, I also received e-Mails from African (law) students and others who asked me to send them a copy of my article because they (or their universities) do not have the financial means to access the “full text”, only the “abstract” – which they “viewed”. Also, during a conference in Ethiopia, I was repeatedly asked for paper copies of this article. From these experiences and the data mentioned above I concluded that it is indeed necessary to pay more attention to such (institutional) academic contexts when researchers debate about the “relevance” of a given topic. And more to the point, the question must be sharpened: “What topic is ‘relevant’ where”? Many researchers or students of international law (probably in Africa) do find “African International Legal Histories” a “relevant” topic. But the question remains how knowledge production about Africa can take place in Africa as long as not even essential digital means are available.

Jakob Zollmann’s article “African International Legal Histories – International Law in Africa: Perspectives and Possibilities” has been published in the Leiden Journal of International Law 31, no. 4 (2018): pp. 897-914. Access to the article is available here.

Written by

Jakob Zollmann is Research Fellow at the WZB Center for Global Constitutionalism.
Website at the WZB

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