Berkeley Legal History Workshop Presents: Idriss Fofana

Idriss Fofana is Assistant Professor of Law and Affiliate Assistant Professor of History at Harvard University. He writes and teaches in the areas of international law, comparative law, legal history, and law and colonialism. His research examines the history of international law and other forms of inter-polity order in Africa and Asia since the 1600s. Focusing on China and Sahelian West Africa, his work has explored African and Asian engagement with transnational legal regimes through subjects as varied as the international protection of private property, non-discrimination standards, the law of treaties, and international labor migration. He works primarily with sources in Chinese (classical and modern), French, Arabic (classical), and Portuguese. His scholarship has appeared or is forthcoming in the Leiden Journal of International Law, the Journal of the History of International Law/Revue d’histoire du droit international, and other publications. Before joining the faculty, he was the Reginald F. Lewis Fellow at Harvard Law School. He also served as a Judicial Fellow for Judge Abdulqawi Yusuf, then president of the International Court of Justice.

“Conflicts as Opportunities: Intertemporal Law, Pluralism and Decolonization”

ABSTRACT
Contemporary international law condemns colonialism, yet international courts and tribunals continue to invoke colonial legal doctrines in territorial disputes in Africa and Asia under the principle of intertemporal law. This article reinterprets that principle, showing that it not only ties the validity of rights to the law at their creation but also subjects their continuing existence to subsequent legal developments. Recovering its intellectual origins in late-nineteenth century antiformalist and sociological jurisprudence, the article argues that the intertemporal principle has functioned, during eras of colonialism and decolonization, to extinguish obsolete historical rights and align international law with the evolving values of the international community. Recasting it as part of a broader conflict based approach to international legal change, the article demonstrates how the principle mediates between distinct temporal and regional legal orders, thereby managing pluralism, enabling the reparation of historical wrongs, and protecting the fundamental norms that structure the modern international order.

Please email egonzalez@law.berkeley.edu to receive a copy of the paper.