History of Development of IL Flashcards
(27 cards)
What is periodization, what are its characteristics?
Periodization is the splitting of history into different sections
- Periodization is not a value-neutral, technical exercise, but reflects underlying concerns
- Periods don’t exist in a vacuum
What were the impacts of Grewe’s epochs?
Hugely influential, but reflects his view that international law’s development is tied to the dominant power in the system of states at any given time
What were Grewe’s epochs?
- Spanish age (1494-1648)
- French age (1648-1815)
- British age (1815-1919)
- Anglo-American condominium (1919-1944)
- American-Soviet rivalry and rise of the Third World (1945-1989)
What is a legal order?
A legal order is not primarily a system of coherent and precisely interacting rules without gaps and contradictions, it is rather the normative image of a natural state of order
What characteristics does legal history tend to have?
- Whiggish
– Narrative of inevitable progress, from the dark lawless ages to enlightenment - Law-office history
– The history of legal development in reverse chronological order, designed to justify the current state of affairs
But can also be: - Critical, linking current practices to unsavory histories in the past
– In an attempt to discredit modern IL
Why do we not focus on the non-Western world when looking at histories of IL? (Chakrabarty)
European thought is at once both indispensable and inadequate in helping us to think through the experiences of political modernity in non-Western nations, and provincializing Europe becomes the task of exploring how this thought - which is now everybody’s heritage and which affects us all - may be renewed from and for the margins
International law age according to Oppenheim and Lauterpacht (international law in antiquity)
International law as a law between sovereign and equal states based on the common consent of those states is a product of modern Christian civilization, and may be said to be about four hundred years old
International law in antiquity
- Traditionally the origins of IL have been traced back to the rise of modern sovereign states in Europe in the 16th century or so, which precludes the existence of “true” international law before that
– Without Westphalia you cannot have law between states - Recently, some have advocated a more “relativist” approach to the origins of international law has emerged, broadening what is understood as international law
- This is not a claim about ancient international law being part of the same continuous and evolving legal system, but a recognition that there are continuities for some institutions and principles of international law
What did the Roman ius gentium cover?
Things such as status of envoys (inviolable), the making of treaties, taking of war loot and slaves, treatment of aliens, and requirements for declaring war, both substantive and formal
Gaius “Institutions” (Romans and ius gentium)
The law that natural reason establishes among all mankind is followed by all peoples alike, and is called ius gentium as being the law observed by all mankind. Thus the Roman people observes partly its own peculiar law and partly the common law of all mankind
- It is not specific to one peoples due to “natural reason” all peoples are following the same “natural reason”
Characteristics of ius gentium
- Distinguishes ius gentium (the law of all gentes) to ius civile, the local law of the civitas
- Not the law between states, but between groups of human beings (gens)
- An early and influential articulation of the natural law view of international law
Natural law tradition (in relation to ius gentium)
- Law as being derived from nature (usually linked back to God) and expressed as human reason
- Highly normative and universalist in its claims
- Dominant until c. the 17th century
Positivist tradition (in relation to ius gentium)
- Law’s content is determined objectively through legal instruments and state practice
- The moral quality of laws is viewed as being beyond the scope of legal science
- Became dominant from c. the 19th century onwards
What caused the end of ius gentium?
Because of the Roman empire’s expansionist practices, the importance of ius gentium would fade, as more and more gentes became part of the Roman empire, and thus came under Roman law (as well as their own customary law) - After the fall of Carthage Rome was unwilling to recognize other polities as sovereign equals
What happened to IL after the collapse of the Roman order?
- After the collapse of the Roman order, a series of more or less independent polities emerged in Europe
- Though they had frequent interactions through treaties etc. the line between “international” and “local” was blurry, especially due to the existence of overarching structures such as the Holy Roman Empire and the Papacy
- Many bodies of law emerged which had implications for international interactions - Canon law; lex mercatoria; various codes of maritime law
Founding fathers of international law
- Hugo Grotius (1583-1645)
- Francisco de Vitoria (1483-1546)
- Alberico Gentili (1552-1608)
- Samuel von Pufendorf (1632-1694)
What were the IL concerns of the founding fathers?
They were animated by contemporary concerns, particularly empire abroad and religious conflict in Europe
- Vitoria: the legal status of Amerindians in the Spanish Empire
- Gentili: the status of diplomats; the laws of war
- Grotius: the ownership of the seas; the laws of war
Francisco de Vitoria facts + impacts on IL
- Dominican friar, whose ideas are only known through lecture notes
- Influential opponent of the Spanish subjugation of Native Amerindians, as well as of forcible conversion - from a Christian and legal point of view
- Annexation of land could only happen in wartime and as reparation
- He saw law as underpinning a universal society in which independent nations could conduct intercourse
Hugo Grotius facts + impacts on IL
- Closely associated with the Dutch East India company
- A defender of natural law; but attempted to imagine what natural law would look like without God
– “What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to him”
What was Grotius’ non religious arguments about IL?
- If an action agrees with the rational and social aspects of human nature, it is permissible; if it doesn’t, it is impermissible - regardless of the religion of the group, as long as they are rational or social
- We obey law not because of divine sanction (necessarily), but because natural law obliges us to perform actions which conduce to our rationality, sociability and need for self-preservation
Grotius “De jure belli ac pacis” (1625)
- A just war theory which owed much to Aquinas, though with an agnostic basis
- Lays out the just causes for war and rules about how war should be conducted
- Importantly, argues rules of war have to be followed regardless of whether the war is legitimate
Grotius “Mare Liberum” (1609)
- A rebuttal to the Portuguest mare clausum policy
- Argues that seas are free for all nations to use, because every nation is free to travel to every other nation, and to trade with it
- Eventually, van Bynkershoek split the difference by introducing the idea of effective control
The Peace of Westphalia (1648)
- Ended the Thirty Years’ War
- Most of what IR says about the Westphalian system is wrong historically, but its importance is arguably in symbolizing trends already underway, particularly in reinforcing secular sovereign state authority
Emer de Vattel facts
- A follower of Grotius who combined natural law with an emerging positivist lens
- Enormously influential well into the 20th century, not least because of his adoption by the founders of the US
- The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns (1758)
– A potent mix of high theory and practical accounts of state practice - what states do, not what they ought to do
