3- History of IL Flashcards
IL in dark ages
a lack of established legal norms and systems - which resulted in a perceived absence of law and order.
reliance on informal customary practices (e.g religious or moral codes, or arbitrary exercises of power) rather than legal frameworks.
what’s “whiggish”
whiggish is the idea that there is an inevitable progress in legal history from lawlessness to -> enlightenment
what’s law-office history
legal history is presented in a reverse chronological order with a focus on justifying the current system.
what’s critical approach to IL?
critical approach involves examining the past with a critical lense, questioning existing doctrines by looking at their historical origins.
challenges the idea of inevitable progress
effect of whiggish and law-office on IL
portrays IL as inevitably progressing towards enlightenment which reinforces the legitimacy of the current doctrine
what’s the traditional view on when IL came to be?
traditioanlly, the origns of IL have been traced back to the rise of modern states in Europe in the 16th century.
this view disrefards the existence of IL because sovereign states didn’t exist.
what’s the relativist view on when IL came to be?
the relativist approach broadens our understanding of IL.
recognizes that there are continuities across different historical contexts.
they don’t claim a causal relationship between modern and ancient IL but rather highlight the presence of certain elements that could be “precursors”
what’s ius gentium?
the law applied to all human beings regardless of their origin
a set of principles that were considered universally applicable and regulates relations btw different cultures.
what’s ius civile
ius civile is the local law of the city state and only applies to roman citizens within the jurisdiction of the city-state
what’s natural law?
law derived from natural reason.
what’s the idea behind natural law?
universal principles of what ought to be done.
morality x natural law
morality is inherent in law
when was natural law popular?
until the 17th century
what’s positivist law?
law determined by social facts/ norms, based on human reason and objective facts.
what’s the idea behind positivism?
objective study of treaties and social facts
morality x positivism
law is seperate form morality but some positivists consider it
who are the fathers of IL?
- Da Vitoria
- Gentilli
- Grotius
what’s da vitoria known for?
- objected spanish subjugation of native people’s from both a Christian and legal perspective.
- land can only be taken in wartime, as reparations.
what’s gentilli known for?
- argued that states can use force in specific circumstances like self-defense or response to aggression
- developed the concept of diplomatic immunity- granting protections.
which type of law did grotius believe in?
natural law.
what’s grotius known for?
- everyone should be allowed to use the sea!
every nation should be free to travel to others and trade.
argued against Portuguese policy of mare clausum which claimed Portugal had exclusive rights around its empire. - “On the Law of War and Peace” - there should be rules for how wars are fought regardless of whether its just or not.
how did cornelius van bynkershoek split from grotius?
he thoguht grotious’s idea was too vague. so he introduced the idea of effective control which means a nation has rights to a portion of the sea based on its ability exert control over it.
what’s effective control?
a nation has rights to a portion of the sea based on its ability to exert control over it.
according to grotious, why do we follow law?
grotious thinks we follow law because it aligns with the rational and social aspects of human nature.
- murder isn’t forbidden because its a sin but because its against our moral inclination to protect our society.
did grotious believe natural law is universal.
YES- Grotious believed that natural law is universal and can be applied to any society (regardless of religion/ beliefs)
what did vattel add to Grotious?
vattel followed the ideas of Grotious but combined natural law and positivist law.
why was vatel’s ideas populat?
they were higly influential until the 20th century because of its adoption by the founders of the US
who did vattel think were the main actors in IL?
vattel thought the primary actors in IL are states not individuals.
states are equal and naturally free, but are bound by a need for self-preservation
what’s convenional law?
conventional law is the express consent of states through treaties, agreements, or conventions.
what’s customary law?
customary law arises from:
1. the consistent practice of states over time
2. followed by a sense of legal obligation
what’s voluntary law?
voluntary law reflects the will of states to preserve basic principles to be shared by all states.
based on the idea that states should follow certain standards even if they haven’t openly agreed to it.
what’s the difference between customary and voluntary law?
customary law is based on ACTUAL PRACTICE
voluntary law is based on SHARED PRINCIPLES AND NORMS
what’s the necessary law of nations
necessary law of nations are the fundamental principles of natural law that are universally applicable to all nations even if they didn’t agree to it.
-> seen as necessary to ensure peaceful coexistence between nations
-> non, intervention, self defense
