Peculiar moment in an international public law conference that I eavesdropped on last week. An interesting talk, another international/regional tribunal might be coming into force, and the speaker was setting forth the case for it. I sent in a question on a certain historical precedent that would seem to have to be made explicit in the tribunal's assertion of authority. The moderators ended up posing the question, and the speaker gave a very thoughtful and surprisingly categorical response. The moderator seemed troubled by the answer (or perhaps the question), though, and then launched into a long, involved question about how much historical precedent had to do with legitimacy, and if covenant among the actors of the time might equally provide legitimacy. Watching this, I understood that he was attempting to dispel the hold of history, and this is a bit troubling.
It's consistent with the Weberian project of modernity, yes, but in the great European debate between historicist legal legitimacy and enlightened legal codes imposed by fiat, recent history offers considerable evidence against the latter. Watching it, it seemed qualitatively identical to the conscious positioning that I saw going on in law school days among the professors who were aligning behind the debate over Romer, etc. They wanted something, and thought they could achieve it politically, and they simply didn't want history to be thought about.
In a perfectly constructed world, this would be troubling enough. But I've encountered more than a few corrupt gatekeepers to these corridors of power, and if simple political will is enough to trump history, then the corrupt mechanism will rule without those on the outside of things being accorded any legitimacy other than whatever present political force they might bring to bear.
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Incidentally, I studiously avoided using the verb "trump" during law studies, and once mused aloud about doing that during a constitutional law 'cold call.' It just seemed too easy a word to use, when a more full explicitation was possible.