3- History of IL

Question 1

IL in dark ages

Answer 1

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.

Question 2

what’s “whiggish”

Answer 2

whiggish is the idea that there is an inevitable progress in legal history from lawlessness to -> enlightenment

Question 3

what’s law-office history

Answer 3

legal history is presented in a reverse chronological order with a focus on justifying the current system.

Question 4

what’s critical approach to IL?

Answer 4

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

Question 5

effect of whiggish and law-office on IL

Answer 5

portrays IL as inevitably progressing towards enlightenment which reinforces the legitimacy of the current doctrine

Question 6

what’s the traditional view on when IL came to be?

Answer 6

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.

Question 7

what’s the relativist view on when IL came to be?

Answer 7

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”

Question 8

what’s ius gentium?

Answer 8

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.

Question 9

what’s ius civile

Answer 9

ius civile is the local law of the city state and only applies to roman citizens within the jurisdiction of the city-state

Question 10

what’s natural law?

Answer 10

law derived from natural reason.

Question 11

what’s the idea behind natural law?

Answer 11

universal principles of what ought to be done.

Question 12

morality x natural law

Answer 12

morality is inherent in law

Question 13

when was natural law popular?

Answer 13

until the 17th century

Question 14

what’s positivist law?

Answer 14

law determined by social facts/ norms, based on human reason and objective facts.

Question 15

what’s the idea behind positivism?

Answer 15

objective study of treaties and social facts

Question 16

morality x positivism

Answer 16

law is seperate form morality but some positivists consider it

Question 17

who are the fathers of IL?

Answer 17

1. Da Vitoria
2. Gentilli
3. Grotius

Question 18

what’s da vitoria known for?

Answer 18

1. objected spanish subjugation of native people’s from both a Christian and legal perspective.
2. land can only be taken in wartime, as reparations.

Question 19

what’s gentilli known for?

Answer 19

1. argued that states can use force in specific circumstances like self-defense or response to aggression
2. developed the concept of diplomatic immunity- granting protections.

Question 20

which type of law did grotius believe in?

Answer 20

natural law.

Question 21

what’s grotius known for?

Answer 21

1. 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.
2. “On the Law of War and Peace” - there should be rules for how wars are fought regardless of whether its just or not.

Question 22

how did cornelius van bynkershoek split from grotius?

Answer 22

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.

Question 23

what’s effective control?

Answer 23

a nation has rights to a portion of the sea based on its ability to exert control over it.

Question 24

according to grotious, why do we follow law?

Answer 24

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.

Question 25

did grotious believe natural law is universal.

Answer 25

YES- Grotious believed that natural law is universal and can be applied to any society (regardless of religion/ beliefs)

Question 26

what did vattel add to Grotious?

Answer 26

vattel followed the ideas of Grotious but combined natural law and positivist law.

Question 27

why was vatel’s ideas populat?

Answer 27

they were higly influential until the 20th century because of its adoption by the founders of the US

Question 28

who did vattel think were the main actors in IL?

Answer 28

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

Question 29

what’s convenional law?

Answer 29

conventional law is the express consent of states through treaties, agreements, or conventions.

Question 30

what’s customary law?

Answer 30

customary law arises from:
1. the consistent practice of states over time
2. followed by a sense of legal obligation

Question 31

what’s voluntary law?

Answer 31

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.

Question 32

what’s the difference between customary and voluntary law?

Answer 32

customary law is based on ACTUAL PRACTICE
voluntary law is based on SHARED PRINCIPLES AND NORMS

Question 33

what’s the necessary law of nations

Answer 33

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