Does Humanity Law Require (or Imply) A Progressive Theory of History? (And Other Questions for Martti Koskenniemi)

In a number of essays over the last decade or so, Martti Koskenniemi has analyzed post-cold war developments in international law, especially the human rights revolution or the emergence of humanity law (Teitel, Humanity’s Law). In these works, Koskenniemi asserts a close, if not essential, connection between optimistic or progressive theories of history and liberal, cosmopolitan, post- or anti-statist approaches to international law. We challenge Koskenniemi’s arguments that humanity law is associated with a dogmatically progressive theory of history, that it is oriented toward a world government, that it relies on a version of historical determinism, that it posits a false universalism, and that legal indeterminacy undermines its claims. Many of our disagreements are related to Koskenniemi’s reading of Kant, and we explain in some detail where our readings diverge. Other differences reflect our competing notions of how contemporary law works, particularly the significance of non-state actors and the effects of international law beyond and below the state