L3 - history 1 Flashcards
(14 cards)
the history of histories of IL
- periodization
periodization is NOT value-neutral, technical exercise = reflects underlying concerns
Grewe’s ‘epochs’ (reading): highly influential but reflects his view that IL dev is tied to dominant power in the system of states at any given time
- Spanish age 1494-1648
- French age 1648-1815
- British age 1815-1919
- Anglo-American condominium 1919-1944
- American-Soviet rivalry and the rise of the Third World 1945-1989
“[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”
= IL is shaped by the great power
- condominium = shared power
history of histories of IL
- what it tends to be and can be
legal history tends to be:
- Whiggish history = idea that history is about progress: narrative of inevitable progress, from the dark lawless ages to enlightenment
= about inevitability of human improvement and progress
(caves -> huts -> houses) - ‘law-office history’: history of legal developments in reverse chronological order, designed to justify the current state of affairs
(legal history done by lawyers)
(history not to describe history, but to justify how we do it now, how we ended up here)
but can also be:
- critical, linking current practices to unsavoury histories in the past (empire, colonialism) = in a negative way
*Grewe also talks about empire, but not in negative terms
how we tell the history of IL reflects our understandings of its nature and moral underpinnings
what about the non-Western world?
- “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 affect us all – may be renewed from and for the margins”—Dipesh Chakrabart
- don’t ignore Europe, bc influential BUT provincialize it, see it as part of the larger system
international law in antiquity
did it exist? we don’t really know
- Oppenheim/Lauterpacht: “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.”
traditionally origins of IL traced back to rise of modern sovereign state in C16 Europe -> precludes the existence of “true” IL before that
recently: more “relativist” approach to origins of IL broadening what is understood as IL
- this isn’t a claim about ancient IL being part of the same continuous and evolving legal system, but recognition that there are continuities for SOME institutions and principles of IL
example IL in antiquity
Treaty of peace between Ramesses II and Hattušili III, circa 1259 BC
- first treaty we have = first evidence of IL (if we think in antiquity IL existed)
what was it?
- peace treaty: Great Prince of Hatti shall not trespass agaisnt the ladn of Egypt forever, to take aything from it + User-maat-Re Setep-en-Re (great ruler of Egypt) shall not tresspass against the land
- it looks really modern (the mutual renunciation of invasion and reaffirmation of former treaties)
- the invocation of the Gods does not look really modern -> acc to some it is not the same as modern law, it is based on fear of punishment of gods, which is not what we would recognize as IL today (say they didn’t really think in legal terms: did they think God ordered them to stop fighting, or did they think they were making law?)
is this law? hard to say, it depends on who you ask
the romans and ius gentium
Near Easter, Far Eastern, and Greek peoples all had some system of rules that regulated relations between different polities
BUT many scholars focus on Ancient Rome as the first to have developed a system which has had a bearing on modern IL
The Roman ius gentium covered things such as:
- status of envoys (inviolable)
- the making of treaties
- taking of war loot and slaves
!!now different: looting and slaves both totally illegal - treatment of aliens
- requirements for declaring war, both substantive and formal
!!now quite diff, often states don’t declare war + war is illegal unless in really specific circumstances
= looks really familiar
Gaius (161 AD): 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.”
- distinguishes ius gentium (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) = idea that it is universal (so maybe not IL)
- an early and influential articulation of the natural law view of IL
-> many lawyers don’t think Roman law was IL bc it was not between states
Roman empire expansion -> importance of ius gentium faded (more and more gentes became part of Roman empire and thus under Roman law) - after the fall of Carthage Rome was unwilling to recognize other polities as sovereign equals
- did the Romans understand ius gentium as a body of law between int’l equals or as basic rules which even barbarians could be expected to follow? - we still don’t really know, it is ambiguous
- the importance of ius gentium for modern IL lies in its rediscovery after the collapse of the Roman world
!roman influence still persists today, most systems today have basis in it: use versions of “Roman” law
natural law tradition vs positivst tradition
natural law tradition
- Law as being derived from nature (usually linked back to God) and expressed as human reason (something that transcends human beings)
- Highly normative and universalist in its claims (it tells what thinks should be like)(we all have reason -> we all should recognize same law)
- Dominant until c. the 17th century
positivist tradition
- Law’s content is determined objectively through legal instruments and state practice (law is made by people, we choose what is law)
- The moral quality of laws is viewed as being beyond the scope of legal science (law is about what is written and done in practice, whether it is moral or not has nothing to do with whether or not it is law, that is left for philosophers)
- Became dominant from c. the 19th century onward
end of the romans
collapse Roman order -> series of more or less independent polities in Europe
had frequent interactions through treaties etc.
but line between international and local was blurry esp bc existence overarching structures as the Holy Roman Empire and the Papacy
many bodies of law emerged which had implications for international interactions
- canon law (Pope made law - not state centered)*maybe rewatch
- lex mercatoria (merchant law = dev in Northern Europe through interactions between merchants = body of practices that assumed legal character over the century = it came from below)
- various codes of maritime law (no certain lawmaker, it was about rules on ships, that gradually became law)
= some form of IL, but not necessarily made by states -> suggests it is possible for IL to be less state-centered (perhaps in the future)
fathers of IL
(Grotius, Westphalia, “modern” IL)
= where most accounts of IL history usually begin
were animated by contemporary concerns, particularly empire abroad and religious conflict in Europe
- Hugo Grotius (1583-1645) = ownership of the seas, laws of war
- Francisco de Vitoria (c. 1483-1546) = legal status of Amerindians in the Spanish Empire
- Alberico Gentili (1552-1608) = status of diplomats, the laws of war
- Samuel von Pufendorf (1632-1694)
Franciso de Vitoria
(c. 1483-1546)
legal status of Amerindians in the Spanish Empire
- Spanish Dominican friar/monk, whose ideas are only known through lecture notes (he was opposed to Spanish treatment of native Americans)
- 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 an universal society in which independent nations could conduct intercourse
Hugo Grotius
(1583-1645)
ownership of the seas, laws of war
closely associated with the Dutch East India Company (he was in essence a corporate lawyer, but they didn’t exist yet then)
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”
- let’s assume there’s no God (!!he is not an atheist, he says they are terrible people), even if you are an atheist natural law is still correct
- reformation: protestants and catholics didn’t want the same thing -> law would fragmentize/split = so Grotius was trying to prevent this
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
- positivists don’t really agree with this
we obey law not because of divine sanction (necessarily) but bc natural law obliges us to perform actions which conduce to our rationality, sociability, and need for self-preservation
- we don’t follow law bc we are afraid of punishment by God, but bc it is good for us, it is based on reasoning
grotius books
De jure belli ac pacis (1625) vs Mare Liberum (1609)
De jure belli ac pacis (1625)
= war on law and peace
- 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
(e.g. Russia’s invasion of Ukraine is illegal (act of aggression), but still they have to follow the rules of war (morally justifiable))
(there is a diff between if a law is legitimate and if it is fought legitimately)
Mare Liberum (1609)
= free oceans
(basically on behalf of the Dutch East India Company)
- a rebuttal to the Portuguest mare clausum policy
- argues that seas are free for all nations to travel to every other nation, and to trade with it
- eventually, van Bynkershoek split the difference by introducing the idea of effective control (if you can fire a canon in the sea, up to that point it is yours, beyond that it is open)(now 200 miles)
Vattel and the transition to positivism
- 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
- it is history made up in C20
- most of what we think we know is totally wrong
importance Westphalia = symbolized trend towards sovereignty
Vattel and the transition to positivism
Emer de Vattel
- follower of Grotius who combined natural law with an emerging positivist lens
- enormously influential well into C20, not least bc of his adoption by the founders of the US (main influence was through the founders of the US, who looked at his work)
- ‘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 thy ought to do
states, not individuals are at the core of Vattel’s legal thought
- states are equal and naturally free; but states are bound by self-preservation, so have broad discretion in determining the rights and wrongs of their behaviour
- he largely separated natural law, which bound the individual, from the law of nations, which was intra-state law
“The law of nations is the law of sovereigns: free and independent states are moral persons, whose rights and obligations we are to establish in this treatise.”
- states are moral persons, people are natural = distinguishes state and individual, which was not common back then (bc state was the king/queen)
(what states are doing (state practice) eventually becomes law: customary law)
Vattel typology of positive IL
conventional law - the result of the express consent of states
customary law - the result of states’ tacit or implied consent
voluntary law - reflects the will of states in order to preserve the basic principles of the int’l community, to which consent is presumed
alongside the positive law of nations, there is the “necessary law of nations”
- a residual natural law which nations are absolutely bound to observe and which cannot be changed via positive law
