Grotius, Dio Chrysostom and the ‘Invention’ of Customary ius gentium

Grotiana ◽  
2018 ◽  
Vol 39 (1) ◽  
pp. 15-44
Author(s):  
Francesca Iurlaro
Keyword(s):  
International Law ◽  
Rhetorical Strategies ◽  
Main Claim ◽  
Customary International Law ◽  
Dio Chrysostom ◽  
Hugo Grotius ◽  
Law Of Nations ◽  
Normative Practice ◽  
History Of ◽  
Ius Gentium

This article tackles the issue of whether and how Hugo Grotius conceives of custom as a formal source of the law of nations. The main claim of it is that not only custom plays a fundamental role in Grotius’s thought, but that his reflections mark a fundamental turning point for the history of customary international law. A crucial role in this process of re-conceptualization is played by Grotius’s reading of Dio Chrysostom, whose oration On custom provides him with an integrated account of custom as a ‘normative practice’ based on rhetorical judgment (as opposed to the Scholastic interpretation of custom as reiteration of voluntary acts). Consequently, I argue that Dio Chrysostom’s text helps Grotius to transpose the question of the normative legitimacy of custom from a moral to an interpretative level. To conclude, I will show that Grotius adopts two different rhetorical strategies to prove the existence of customary norms of ius gentium.

International Law as a Political Language, 1600–1859

2020 ◽  
pp. 48-78
Author(s):  
Walter Rech
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Legal Issues ◽  
European Law ◽  
Political Language ◽  
Law Of Nations ◽  
History Of ◽  
The Common ◽  
Ius Gentium ◽  
The Relationship

By illustrating the history of Italian international law from the early seventeenth to the mid-nineteenth century, this chapter explores the question of whether and to what extent this period may have been characterized by a genuinely Italian ‘tradition’ or approach to international legal issues. The chapter questions the notion of a monolithic Italian tradition in international law and shows that the commonality of topics and interests among Italian lawyers can best be read as part of broader trends in the European ‘law of nations’. Although they were concerned with nationally important matters such as maritime trade, the sovereignty of smaller polities and the relationship between State and church, Italian lawyers constantly defended their claims by resorting to the common European vocabulary of the ius naturae and ius gentium.

The School of Salamanca

2011 ◽  
Author(s):  
Anthony Pagden
Keyword(s):  
Early Modern ◽  
International Law ◽  
Modern World ◽  
Law Of Nature ◽  
Hugo Grotius ◽  
Law Of Nations ◽  
School Of Salamanca ◽  
The Law ◽  
Ius Gentium ◽  
Francisco De Vitoria

The members of the so-called School of Salamanca (or “Second Scholastic,” as it is sometimes called) were, for the most part, the pupils, and the pupils of the pupils—from Domingo de Soto and Melchor Cano to the great Jesuit metaphysicians Luís de Molina and Francisco Suárez—of Francisco de Vitoria, who held the Prime Chair of Theology at Salamanca between 1526 and his death in 1546. Although they are often described vaguely as “theologians and jurists,” they were all, in fact, theologians. In the early modern world, theology, the “mother of sciences,” was considered to be above all other modes of inquiry, and covered everything that belongs to what today is called jurisprudence, as well as most of moral and political philosophy, and what would later become the human sciences. This article focuses on the Salamanca theologians' discussion of the law of nature—the ius naturae—and of the law of nations (ius gentium), for which reason Vitoria has often been referred to (along with Hugo Grotius) as the “father of international law.”

Rewriting the History of the Law of Nations

2019 ◽  
Author(s):  
Paolo Amorosa
Keyword(s):  
International Law ◽  
The United States ◽  
League Of Nations ◽  
Equal Rights ◽  
Wars Of Religion ◽  
Global Power ◽  
Hugo Grotius ◽  
Law Of Nations ◽  
History Of ◽  
Francisco De Vitoria

In the interwar years, international lawyer James Brown Scott wrote a series of works on the history of his discipline. He made the case that the foundation of modern international law rested not, as most assumed, with the seventeenth-century Dutch thinker Hugo Grotius, but with sixteenth-century Spanish theologian Francisco de Vitoria. Far from being an antiquarian assertion, the Spanish origin narrative placed the inception of international law in the context of the discovery of America, rather than in the European wars of religion. The recognition of equal rights to the American natives by Vitoria was the pedigree on which Scott built a progressive international law, responsive to the rise of the United States as the leading global power and developments in international organization such as the creation of the League of Nations. The book describes the Spanish origin project in context, relying on Scott’s biography, changes in the self-understanding of the international legal profession, as well as on larger social and political trends in US and global history. Keeping in mind Vitoria’s persisting role as a key figure in the canon of international legal history, the book sheds light on the contingency of shared assumptions about the discipline and their unspoken implications. The legacy of the international law Scott developed for the American century is still with the profession today, in the shape of the normalization and de-politicization of rights language and of key concepts like equality and rule of law.

scholarly journals A Importância de Hugo Grócio para o Direito

2016 ◽  
Vol 11 (2) ◽  
Author(s):  
Chiara Antonia Sofia Mafrica Biazi
Keyword(s):  
International Law ◽  
Natural Law ◽  
Philosophy Of Law ◽  
Santa Catarina ◽  
Main Work ◽  
Hugo Grotius ◽  
History Of ◽  
History Of Law ◽  
The Law ◽  
Ius Gentium

A IMPORTÂNCIA DE HUGO GRÓCIO PARA O DIREITO  THE IMPORTANCE OF HUGO GROTIUS FOR THE LAW  Chiara Antonia Sofia Mafrica Biazi*  RESUMO: O presente artigo visa estudar a figura do jurista e teólogo holandês Hugo Grócio, considerando a época conturbada em que o mesmo viveu e que acabou influenciando seu pensamento e suas obras de forma marcante. Analisam-se as contribuições do autor no tocante ao direito internacional, à filosofia do direito e à história do direito, levando em conta a importância do jurista como um dos maiores representantes do iusnaturalismo laico e um dos principais autores que contribuem para o desenvolvimento do direito internacional. O artigo debruça-se sobre a obra principal de Grócio, o De iure belli ac pacis, frisando os pontos considerados mais relevantes aptos a testemunhar as inovações trazidas pelo autor no direito. PALAVRAS-CHAVE: Hugo Grócio; jusnaturalismo; De iure belli ac pacis. ABSTRACT: The aim of this article is to study Dutch jurist and theologist Hugo Grotius, taking into account the troubled times in which he lived and which ended up influencing his thought and works in a remarkable way. His contributions related to international law, philosophy of law and history of law are analysed, bearing in mind his importance as one of the main representatives of secular natural law and one of the main authors who contributed to the development of international law. The article addresses Grotius main work, namely De iure belli ac pacis, highlighting the most relevant aspects capable of showing the innovations brought by the author into the field of law. KEYWORDS: Hugo Grotius, jusnaturalism; De iure belli ac pacis. SUMÁRIO: Introdução. 1 A vida e as obras de Hugo Grócio 2 A obra de iure belli ac pacis 2.1 Contexto histórico da obra. 2.2 A importância de regulamentar a guerra e o direito natural. 2.3 A hipótese impíssima. 3. Sistema de direito e fontes do direito em Grócio. 3.1 Divisão do direito e das fontes do direito. 3.2 Definição do direito. Considerações finais. Referências.* Doutoranda do Programa de Pós-Graduação em Direito da Universidade Federal de Santa Catarina (UFSC). Mestre em Direito e Relações Internacionais pela Universidade Federal de Santa Catarina (UFSC). Graduada em Direito pela Università degli Studi di Trento. Membro do grupo de pesquisa em Direito Internacional Ius Gentium, registrado no Conselho Nacional de Desenvolvimento Científico e Tecnológico (CNPq).

The Use of Vattel in the American Law of Nations

2012 ◽  
Vol 106 (3) ◽  
pp. 547-571 ◽  
Author(s):  
Brian Richardson
Keyword(s):  
Eighteenth Century ◽  
International Law ◽  
International Peace ◽  
Founding Fathers ◽  
Law Of Nations ◽  
American Law ◽  
History Of ◽  
The Law ◽  
History Of International Law

Although careful scholarly treatment of the history of international law is now thriving, within U.S. courts that history now begins with one eighteenth-century treatise published in Neuchâtel, Switzerland, in 1758 and published in translation for modern readers under the aegis of the Carnegie Endowment for International Peace in 1916. This treatise is Emer de Vattel’s Droit des gens ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains. My aim in this article is to appraise the elevation of Vattel to vaunted originalist heights in U.S. law. The claim that Vattel’s theory of the law of nations completely represents how the Founding Fathers (Founders) understood the law of nations should be rejected as a matter of history.

scholarly journals Ius in Bello under Islamic International Law

2013 ◽  
Vol 13 (3) ◽  
pp. 593-625 ◽  
Author(s):  
Mohamed Elewa Badar
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Eighth Century ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
International Court ◽  
Hugo Grotius ◽  
Law Of Nations

In 1966, Judge Jessup of the International Court of Justice pointed out that the appearance of an English translation of the teaching on the ‘Islamic law of nations’ of an eighth-century Islamic jurist (Shaybānī) is particularly timely and of so much interest because of the debate over the question whether the international law, of which Hugo Grotius is often called the father, is so completely Western-European in inspiration and outlook as to make it unsuitable for universal application in the context of a much wider and more varied international community of States. However, there has been little analysis of the role of Islam in shaping the modern European law of war and its progeny, international humanitarian law. This article argues that there is a room for the contribution of the Islamic civilisation within international humanitarian law and a conversation between different civilisations is needed in developing and applying international humanitarian law norms.

Le rôle des Traités dans les relations entre les puissances européennes et les souverains africains

2017 ◽  
Author(s):  
C. H. Alexandrowicz
Keyword(s):  
Eighteenth Century ◽  
International Law ◽  
Colonial Period ◽  
Transitional Period ◽  
North African ◽  
Law Of Nations ◽  
History Of ◽  
Bilateral Treaties

This chapter divides the history of treaty-making between European and African powers into three periods. In the pre-colonial period through the end of the eighteenth century, European treaty relations with primarily North African powers reflected a non-discriminatory law of nations. During a transitional period leading to the 1885 Congress of Berlin, provisions of equality and reciprocity disappeared from European treaties with African powers. Still, as European powers sought to secure juridical title to African land through bilateral treaties of territorial cession and protection with African sovereigns, the latter retained a measure of influence over negotiations. After the Congress of Berlin, the majority of international jurists, members of the positivist school, defied the rules of traditional international law with a new conception of colonial protectorate that gave European powers carte blanche to occupy and annex the territory of ‘protected’ states.

Some Problems in the History of the Law of Nations in Asia (1963)

2017 ◽  
Author(s):  
C. H. Alexandrowicz
Keyword(s):  
International Relations ◽  
International Law ◽  
Case Law ◽  
Legal Aspects ◽  
State Sovereignty ◽  
Law Of Nations ◽  
The Family ◽  
History Of ◽  
The Subject ◽  
The Law

This chapter considers problems in the study of the history of the law of nations in Asia. It argues that international lawyers have focused their attention on the legal aspects of contemporary problems of international relations and politics, and on the operation of tribunals and quasi-tribunals and the case law they produce. Writers of present day treatises of international law devote just a few introductory pages to the history of the subject and these short chapters are often based on similar introductions in nineteenth-century treatises. The chapter discusses some of the elements of legal change in which European–Asian relations played a significant role; the gradual elimination of the natural law outlook by growing European positivism; the principle of universality of the law of nations and the principle of identity of de facto and de jure State sovereignty; and the use of capitulations to delay the ‘entry’ of Asian States into the family of nations.

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