scholarly journals The Principle of Good Faith in Public International Law

2020 ◽  
Vol 68 (1) ◽  
pp. 43-59
Author(s):  
Talya Uçaryılmaz
Keyword(s):  
Early Modern ◽  
International Law ◽  
Natural Law ◽  
Good Faith ◽  
Roman Law ◽  
International Treaty ◽  
Abuse Of Power ◽  
Refugee Law ◽  
Law Of Nations ◽  
Private Actors

Honesty, loyalty and reasonableness together refer to the principle of good faith in contemporary private law. The principle of good faith historically emerged as a natural law principle deriving from Roman law of nations, the universal set of rules applicable for all mankind. However, it also has immense historical effects on the early modern theories of international law. Being based on natural law and morality, good faith is well-equipped to be a fundamental standard of behavior in contemporary international law concerns. Good faith manifests itself as pacta sunt servanda as the basis of international treaty law. As a principle referring to honesty, loyalty and reasonableness, it guarantees the prohibition of the abuse of power and provides equitable solutions in legal relationships between sovereigns and private actors. Accordingly this article examines the application of the classical Roman principle of good faith in international law from a transhistorical perspective to clarify its contemporary applications, taking refugee law as an example. It concerns itself with the fundamental elements of good faith, the historical emergence of the principle, its relationship with early modern international legal theories and its contemporary significance in refugee law.Received: 23.10.2019Accepted: 29.12.2019Published online: 03.07.2020

Sources in the Modern Tradition

2018 ◽  
Author(s):  
Randall Lesaffer
Keyword(s):  
Early Modern ◽  
International Law ◽  
Roman Law ◽  
Grand Narrative ◽  
Historical Source ◽  
Law Of Nature ◽  
Modern Age ◽  
Law Of Nations ◽  
State Practice ◽  
The Law

This chapter considers how the modern historiography of international law has ascribed pride of place to the jurisprudence of the law of nature and nations of the Early Modern Age. Whereas the writers from this period have had a significant influence on nineteenth-century international law, their utility as a historical source has been far overrated. The development of the law of nations in that period was much more informed by State practice than historians have commonly credited. Moreover, historiography has overestimated the novelty of the contribution of Early Modern jurisprudence and has almost cast its major historical source of inspiration into oblivion: the late medieval jurisprudence of canon and Roman law. It is thus important to restore medieval jurisprudence to its rightful place in the grand narrative of the evolution of international law.

Religion und Recht in der Frühen Neuzeit

2016 ◽  
Vol 102 (1) ◽  
Author(s):  
Christoph Strohm
Keyword(s):  
Early Modern ◽  
Natural Law ◽  
Canon Law ◽  
Roman Law ◽  
Modern History ◽  
Early Modern History ◽  
Religion And Law ◽  
Law Of Nations

AbstractReligion and Law in the Early Modern history. The devaluation of the canon law by Protestant Reformers promoted the system-oriented presentations of law based on Roman law. Also in ius publicum there is a significant majority of Protestant authors. The situation differs from natural law and law of nations where the discourse of the 16

Natural Law in Early Modern Legal Thought

2018 ◽  
Author(s):  
David Ibbetson
Keyword(s):  
Early Modern ◽  
Natural Law ◽  
Roman Law ◽  
Modern World ◽  
Human Reason ◽  
God's Will ◽  
Law Of Nature ◽  
Legal Thought ◽  
Greco Roman ◽  
Hugo Grotius

Natural law thinking in the early modern world had two principal roots: Greco-Roman moral philosophy and Roman law. These two strands came together in sixteenth-century Spain, from where they influenced the Dutchman Hugo Grotius. Grotius can be seen as the channel through which this thinking reached a pan-European audience. His works, and the works of his followers, came to have an enormous influence on the development of legal thought and practice after the seventeenth century. Ideas of natural law were no longer regarded as dependent on God’s will. A rational structure could be derived from self-evident premises in the law of nature and identification of concrete rules of natural law was regarded as the work of human reason. These features, coupled with its seeming moral objectivity, allowed natural law to provide a template for positive legal systems, and fuelled the move towards codification of law in eighteenth-century Europe.

Perfect War: Alberico Gentili on the Use of Force and the Early Modern Law of Nations

Grotiana ◽  
2020 ◽  
Vol 41 (2) ◽  
pp. 263-281
Author(s):  
Valentina Vadi
Keyword(s):  
Early Modern ◽  
International Law ◽  
Civil Wars ◽  
Dispute Settlement ◽  
Theory And Practice ◽  
Dark Side ◽  
Dispute Settlement Mechanism ◽  
Law Of Nations ◽  
Imperial Expansion ◽  
Settlement Mechanism

Abstract Gentili’s conceptualization of war as a conflict between states attempted to limit the legitimacy of war to external wars only, thus precluding the legitimacy of civil wars. It reflected both the emergence of sovereign states and the vision of international law as a law among polities rather than individuals. The conceptualization of war as a dispute settlement mechanism among polities rather than a punishment for breach of the law of nations and the idea of the bilateral justice of war humanized the conduct of warfare and the content of peace treaties. The idea of perfect war excluded brigandage, piracy, and civil wars from its purview. Some scholars have suggested that perfect war had a dark side, legitimizing imperial expansion. Others have cautioned that Gentili explicitly opposed imperial expansion rather adopting anti-imperialist stances. This article suggests that these ambivalent readings of the Gentilian oeuvre reflect the ambivalence of the early modern law of nations. Under the early modern law of nations, aggression for the sake of empire was clearly unjust; nonetheless, imperial expansion took place. Whereas ‘a law which many transgress[ed] [wa]s nonetheless a law’, there was a wide divide between theory and practice.1

At the Crossroads: Justus Lipsius and the Early Modern Development of International Law

2007 ◽  
Vol 20 (1) ◽  
pp. 65-88 ◽  
Author(s):  
HALVARD LEIRA
Keyword(s):  
Early Modern ◽  
International Law ◽  
Natural Law ◽  
Theory And Practice ◽  
The Enlightenment ◽  
Modern Age ◽  
Modern Development ◽  
The Many ◽  
Late Renaissance ◽  
The Way

Justus Lipsius (1547–1606) was among the most famed intellectuals in his time, but was largely forgotten during the Enlightenment. Intellectually, he stood at an important crossroads, his thought incorporating both late Renaissance traits and precursors of the early modern age. In this article I give a brief intellectual background to Lipsius's thought before concentrating on his thought regarding the lawful interaction between polities, with a focus on lawful government, dissimulation, war, and empire. I then detail the way in which Lipsian thought critically informed later theory and practice. It contained an eclectic mix of divine law, natural law, and positive human law, with some elements borrowed and popularized from earlier writers and others being more original. In the end, his work stands out both as an important inspiration for later theorists and practitioners, and as an example of the many idiosyncrasies and possible trajectories that early international law could have adopted.

Part II Approaches, Ch.14 Natural Law in International Legal Theory: Linear and Dialectical Presentations

2016 ◽  
Author(s):  
Gordon Geoff
Keyword(s):  
Early Modern ◽  
International Law ◽  
Natural Law ◽  
Legal Theory ◽  
Early Modern Period ◽  
Time Frame ◽  
Political Organization ◽  
Modern Period

This chapter presents an overview of three active periods of natural law scholarship bearing on international legal theory, via two stories that illustrate these to effect. The first story relates in brief the renewed attention to natural law doctrine as part of historiographical and epistemological inquiries in international law and legal theory. The second presents still another means of understanding natural law and its ongoing role in international law, namely as a dialectic by which new conceptions and vocabularies of political organization have arisen under varying historical circumstances. The chapter then traces the role of natural law doctrine as part of a linear consolidation of liberal hegemony internationally from the early modern period forward, and offers the dialectical presentation covering the same time frame. The chapter concludes by returning to how natural law continues to contribute both to the possibility of new normative programs internationally, as well as the hegemonic.

scholarly journals Three Grotian Theories of Humanitarian Intervention

2015 ◽  
Vol 16 (2) ◽  
Author(s):  
Evan J. Criddle
Keyword(s):  
Human Rights ◽  
International Law ◽  
Natural Law ◽  
Humanitarian Intervention ◽  
First Century ◽  
Responsibility To Protect ◽  
Self Defense ◽  
The People ◽  
Hugo Grotius ◽  
Law Of Nations

AbstractThis Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their natural law underpinnings and concerns about how they have facilitated Western colonialism. As an alternative, this Article outlines a third theory that builds upon Grotius’s account of humanitarian intervention as a fiduciary relationship, while updating Grotius’s account for the twenty-first century. According to this new fiduciary theory, when states intervene to protect human rights abroad they exercise an oppressed people’s right of self-defense on their behalf and may use force solely for the people’s benefit. As fiduciaries, intervening states bear obligations to consult with and honor the preferences of the people they seek to protect, and they must respect international human rights governing the use of force within the affected state. By clarifying the respective responsibilities of the Security Council and individual states for humanitarian intervention, the fiduciary theory also lends greater coherency to the international community’s “responsibility to protect” human rights.

The Influence of the Law of Nature Upon International Law in the United States

1909 ◽  
Vol 3 (3) ◽  
pp. 547-561 ◽  
Author(s):  
Jesse S. Reeves
Keyword(s):  
International Law ◽  
Modern Science ◽  
The United States ◽  
Natural Rights ◽  
Roman Law ◽  
Traditional System ◽  
Law Of Nature ◽  
Law Of Nations ◽  
The Law ◽  
Scholastic Philosophy

The political philosophers of the eighteenth century might have been surprised if told that their favorite doctrine of natural rights was the intellectual successor of certain theories of the Roman law and of the scholasticism of Saint Thomas Aquinas. Yet the “ state of nature,” which filled so large a place in the discussion of natural rights, has been called “ an exaggerated perversion of what, in traditional system, was quite a subordinant point” From Locke to Hooker, and back through the scholastic philosophy, the germ of natural rights has been traced to the jus naturœ and the jus gentium of the Roman law. Grotius and his successors preserved the tradition in another and more direct line. The continuity of Grotius with the doctrine of the Roman law was complete. “ The law of nature,” said Holland, “ is the foundation, or rather the scaffolding, upon which the modern science of International Law was built up by Gentilis and Grotius. The change in the meaning of jus gentium made by Grotius and his successors, and the influence which the jus naturœ had in forming the new conception of the law of nations can only be referred to here.

Sign in / Sign up

Export Citation Format

Share Document