History of International Law, 1550–1700

by

Ignacio De La Rasilla Del Moral

• LAST REVIEWED: 23 February 2017
• LAST MODIFIED: 22 February 2018
• DOI: 10.1093/obo/9780199796953-0036

Introduction

Every epoch remakes the study of the history of international law in its own image. In the wake of a post–Cold War turn to the history of international law, the traditional interdisciplinary pollination of the history of international law, which blends international relations theory and its historical discourse, legal history, and the history of ideas and political thought, has been further enhanced by a growing diversity of standpoints. It has broken new thematic paths for scholarly exploration and has benefited from a new set of historiographical methodologies. However, the core of the classical historiography of international law still predominantly revolves around a mythical foundational moment for the creation of a Eurocentric international legal narrative. The contours of this classical historiography may be, summarily, examined by reference to two major poles. There is, on one hand, the culmination of the medieval natural law tradition rooted in Christian doctrines and interwoven with Roman law and Stoic foundations throughout the Middle Ages. This orientation attained its climax with the seconda scholastica embodied by the Salamanca school—its aprioristic and universal character accounting for the embedment of religion and morals in international relations at the dawn of the modern era in the Age of Discovery. There is, on the other hand, the dismantling of the medieval Respublica Christiana order erected upon the pillars of the papacy and the Holy Roman Empire alongside the parallel long emergence of the modern state (as superiorem non recognoscentes) which gave rise to a Western state system of territorial limited sovereignty and an early modern type of the law of nations (or voluntary law). In the classical Eurocentric historiography, these two poles converge on the Peace of Westphalia, which is identified as the European geopolitical origin for a modern (or classical) law of nations circumscribed in its application to the rights and duties of states in their external relations, and thus one continually distancing itself—although far from ever entirely superseding it—on grounds of reasons of state from both the moral and religious elements embedded in the natural law tradition. The Peace of Westphalia allegedly marked the birthdate, after a long advent through the premodern era, of a post-imperial sovereignty-based ius publicum europaeum or ius gentium europaeum. In the late 19th century, as the ius publicum europaeum adopted its ultimate global dimension in the Age of Empire, the classical Western historiography began to be challenged for generating a Eurocentric and civilizational superior state-centered distortion, which led to the displacement of other narratives. The postcolonial and non-state-centered historiographical challenges have grown stronger as different waves of decolonization and transformations in the structure of international society have unfolded throughout the 20th century. They still permeate the study of the history of international law during the period 1550–1700 in the global academia of the early 21st century.

General Overviews

Most of the existing general overviews provide an overwhelming focus on European developments between 1550 and 1700. General overviews are susceptible of classification according to the two-tiered broad-ideal typology of international legal history put forward by Martti Koskenniemi (see Koskenniemi 2011, cited under Non-European History). Within the category of “realist” narratives “that concentrate on State power and geopolitics and view international law’s past in terms of the succession of apologies for State behaviour” and periodize accordingly, the most paradigmatic example is Grewe 2000 which includes 1550–1700 as falling squarely under the Spanish age (until 1659), and partly under the French age. The realist stress on diplomacy and treaty relations is particularly forceful in Nussbaum 1954. While not renouncing the power-based geopolitical substratum that permeates these realist narratives, an intellectual turn of the screw to them is provided in Schmitt 2003, which focuses on the changing shifts of the “nomos” of the Earth. On the other hand, “idealist” or doctrinal histories that “focus on lawyers and philosophers and view the past through debates about legal principles or institutions” tend also to revolve around the period 1550–1700, viewing it as the great historical caesura of the emergence of the modern state and its accompanying modern state system in Western Europe. The exact dating of the genesis of the early modern state, with candidates ranging from the 15th to the 16th century, or even back to the 13th century, has, in its turn, influenced the existing periodizations of the history of international law. These remain intermingled with a nationalistically and religiously tainted historiographical contest about the founding fathers of international law. This can be observed in the classification schemes that accompany a selected and highly scrutinized number of Classic Authors, beginning with Francisco de Vitoria for this period. Truyol y Serra 1995 provides a clear example of this evolving “idealist” history, which benefits from the author’s great familiarity with Spanish sources. Neff 2014 accompanies the history of international and global transformations from ancient times to the present. Jouannet 2012, with its modern theoretically informed approach, builds around the dual notion of a liberal-welfarist law of nations, sets the modern origins of the discipline in the 18th century. In its turn, Laghmani 2004 is permeated by an anti-imperial ethos in its reexamination of the history of international law from the ius gentium imperial to a post-Westphalian ius publicum europaeum. A deeper bibliographical texture has been added to the field in Koskenniemi 2012, which provides a unique history of international law histories.

• Grewe, Wilhelm G. The Epochs of International Law. Translated and revised by Michael Byers. Berlin and New York: de Gruyter, 2000.

  DOI: 10.1515/9783110902907

  Representative of the epochal approach to international law and the division of the history of international law into stages of periodical development coincidental with the predominance of specific hegemonic powers. Monumental and greatly influential, this is a great starting point for students of the history of international law to cut their teeth on. Originally published in German in 1984.

• Jouannet, Emmanuelle. The Liberal-Welfarist Law of Nations: A History of International Law. Translated by Christopher Sutcliffe. Cambridge, UK: Cambridge University Press, 2012.

  DOI: 10.1017/CBO9781139093583

  A suggestive historically informed departure from traditional approaches that places the emergence of the international law in the 18th century. A modern inquiry into what the author portrays as the dual liberal-welfarist structural normative framework underlying international law which extends up to present times.

• Koskenniemi, Martti. “A History of International Law Histories.” In The Handbook of the History of International Law. Edited by Bardo Fassbender and Anne Peters, 943–971. Oxford: Oxford University Press, 2012.

  The most updated and well-grounded bibliographical essay on the history of international law from the standpoint of post–Cold War historiographical developments. Simply a must-read because of its seminal character and philosophical acumen.

• Laghmani, Slim. Histoire du droit des gens: Du jus gentium imperial au jus publicum europaeum. Paris: Pedone, 2004.

  An inquiry in the formative period of the history of international law which is oriented to examine the interdependence that exists between shifts in international law and both the evolution of the relationships between actors and the evolving nature of those actors through history.

• Neff, Stephen. Justice among Nations: A History of International Law. Cambridge, MA: Harvard University Press, 2014.

  Combines historical detail on major events and turning points throughout the history of international law with particular analytical attention to the intellectual evolution of the major schools of thought within the discipline over time. A new referential work in the field.

• Nussbaum, Arthur. A Concise History of the Law of Nations. 2d enlarged ed. New York: Macmillan, 1954.

  An example of the apologetic strand of international legal history that focuses on diplomacy and treaty relations. The Spanish translation (1949) contains long additions on the history of the Hispanic doctrine, which were written during the apogee of National Catholicism in Spain. Also available in German (1960).

• Schmitt, Carl. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. Translated and introduced by G. L. Ulmen. New York: Telos, 2003.

  Originally published in 1950 (2d ed. 1974) in German, and translated into English in 2003, Schmitt’s lucidly polemical work has regained new prominence thanks to extensive scholarly commentary in the post-9/11 literature of international law and international relations. Available annotated translations also exist in Spanish (edited by Monereo, 2002), Italian (edited by Volpi, 2003) and French (edited by Haggenmacher, 2008).

• Truyol y Serra, Antonio. Histoire du droit international public. Paris: Economica, 1995.

  Presents an accessible and informative universalist approach to the history of international law, influenced by the sociologist axiom ibi societas inter potestates, ibi ius gentium, which transcends the Eurocentric framework of the Westphalian state-centered narrative. Although it was originally published in French, there is a Spanish edition (1998).