Lecture 3 Flashcards
History of IL
Periodization
- Periodization is not a value neutral technical exercise, but reflects underlying concerns. Periodization means dividing history into periods.
Grewe’s epoch (reading)
- Grewe’s epochs (reading) is hugely influential but reflects his view that IL development is tied to dominant power in system of states at any given time.
o Spanish age (1494-1648), French age 1(648-1815), British age (1815-1919), Anglo American condominium (means shared) (1919-1944) and American soviet rivalry and rise of the third world.
o A legal order isn’t 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.
Legal history tends to be
o Whiggish; narrative of inevitable progress, form dark lawless ages to enlightenment.
o Law office history; the history of legal developments in reverse chronological order, designed to justify current state of affairs. History as a way to justify the now.
o But it could also be critical, linking current practices to unsavoury histories in the past.
o How we tell the history of IL affects our understanding of its nature and moral underpinnings.
How about the non western world?
o “Europeans thought is at once both indispensable and inadequate in helping us to think through the experiences of political modernity in non western nations, and provicializing 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.” – Chakrabarty
Oppenheim and Lauterpacht
- “IL 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” – Oppenheim and Lauterpacht
Origins IL
- Traditionally, the origins of IL have been traced back to the rise of the modern sovereign state in Europe in the 16th century or so, which precludes the existence of true IL before that.
- Recently, some have advocated a more relativist approach to origins of IL has emerged, 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 a recognition that there are continuities for some institutions and principles of IL.
Treaty of Ramesses II and Hattusili III dated back to 1259 BC
o Contains an invocation of the gods, a mutual renunciation of invasion and reaffirmation of former treaties. Nature of divine law.
Romans and the ius gentium
- Though near eastern, far eastern and Greek peoples all had some system of rules which regulated relations between different policies, 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, which are inviolable, making of treaties, taking of war loot and slaves, treatment of foreigners and requirements for declaring war, both substantial and formal.
Distinction between ‘gens’
- “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 rhe roman people observes partly its own peculiar law and partly common law of al mankind” – Gaius 161 AD
- Distinguishes ius gentium (law of all gentes) to ius civile, local law of the civitas.
- Not law between states, but between groups of human beings (gens).
- An early and influential articulation of natural law view of IL.
Natural law tradition
Law as being derived from nature, usually linked back to God and expressed un human reason.
Highly normative and universalist in its claims.
Dominant until circa the 17th century.
Positivist tradition
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.
After the fall of Carthage
- Because of the roman’s 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.
o Did the romans understand ius gentium as a body of law between international equals or basic rules which even barbarians could be expected to follow?
Importance of ius gentium for modern IL
- The importance of ius gentium for modern IL lies in its rediscovery after the collapse of the roman world.
- 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 existence of overarching structures such as the holy roman empire and the papacy.
Maritime law
- Many bodies of law emerged which had implications for international interactions – canon law; lex mercatoria (holy catholic church); various codes of maritime law. Maritime law is inherently international.
IL contemporary concerns -> starting IL
- Hugo de Groot, 1583-1645 is one of the fathers of IL alongside Alberico Gentili, Francisco de Vitoria and Samuel von Pufendorf. Very closely associated with VOC (boe).
- They were animated by contemporary concerns, particularly empire abroad and religious conflict in Europe.
