westphalian order & emergence of international law Flashcards
ius publicum
= Public Law
Governs the internal structure of a state, including constitutional, administrative, and criminal law. It regulates relationships between the state and individuals.
ius gentium
= Law of Nations
- Governs relations between states and is the foundation of international law.
- Originally, in Roman law, it referred to universal principles applied to foreigners and citizens alike.
Thirty Years War (1618-1648)
→ ignited by religious conflict of Habsburg emperor and protestant bohemia (”defenestration of Prague”), defeated in the Battle of White Mountain in 1620
→ joining of protestant Denmark and Sweden
→ later also catholic France: no longer religious conflict, but power struggle between Habsburgs and Bourbons
→ ended with Habsburg defeat
Peace of Westphalia (1648)
→ Peace of Münster (France) and Osnabrück (Sweden)
→ constitutional and religious reforms of the empire adopted by Reichstag
→ consolidated the dualistic system: imperial princes granted sovereignty
→ already largely independent Switzerland left de iure
→ established the doctrine of balance of power and the basis for modern international relations
main principles of the Westphalian order
- state sovereignty: supreme authority within their own borders, principle of non-interference
- rise of the nation-state as the primary actor in international law
- balance of power: prevent any single state from becoming too powerful
- set precedents for treaty law, diplomatic immunity, and dispute resolution through diplomacy
.
roman law foundations of public law
Dig. I.I.2;
— Public law: administration, sacred ceremonies and
duties of priests and magistrates
— Private Law: interests of individuals; is threefold, derived from:
→ Natural precepts
→ Those of law of Nations
→ Those of Civil law of Rome
Inst. I.I.4:
— public: welfare of Roman State
— private: Advantage of individual citizen
Nicolo Machiavelli
→ Mirror of Princes; tells princes how to behave
→ Be too moral is not good if you want to stay in power: self-preservation
→ Neglect moral, religious and legal obligations
→ Allowed to break promises
Basic Laws of the Empire
— Golden Bull of 1356
— Permanent Territorial Peace of 1495
— Peace of Augsburg of 1555
— Peace of Westphalia of 1648
— Recent Imperial Recess of 1654
philosophy of Jean Boudin
- Six Books of the Commonwealth
- sovereignty is supreme and indivisible authority of the state
- it must protect order, stability and unity
- marked by legislation
- comprises: right of taxation, to wage war, to send ambassadors etc.
→ monarch is bound by divine law; but no right of population to resist!
philosophy of Thomas Hobbes
→ Leviathan
→ monarch brings peace, security, and civilisation against „barbarism“
→ strong, centralised, absolute authority
→ chaos of state of nature
→ absolute power vested in sovereign through social contract
→ war of all against all: bellum omnium contra omnes
philosophy of Montesquieu
- The Spirit of the Laws
- separation of powers: legislative, executive, judiciary
- political system is determined by geography, climate, history and culture
philosophy of John Locke
- Two Treatises of Government
- government based on the consent of the governed
- protection of natural rights (life, liberty, and property).
- separation of powers
- right of the people to revolt against a government that fails to protect their rights
- natural state is state of freedom
- governments must be controlled, an absolute monarch would still be a „judge in his own case“
philosophy of Kant about international law
- Perpetual Peace (1795)
- (ius gentium) was not just a set of regulations between states but a moral law that would guarantee the rights of individuals on the global stage
- importance of sovereignty and self-determination
- renunciation of war and promotion of peaceful dispute resolution
philosophy of Thomas Rutherford
- law of nations (ius gentium) is simply the law of nature, but applied to collective persons (i.e., states) rather than individuals.
- states are also naturally equal in international relations
– the same moral and legal principles that govern individuals (e.g., justice, self-preservation, contracts) also apply between states - domestic analogy: relations between states should be understood similarly to relations between individuals
philosophy of Emer de Vattel
The Law of Nations (1758),
- nations must be treated as moral persons with rights and duties → natural law!
- states are sovereign and equal, with no authority above them except the law of nature, which dictates mutual respect and non-interference.
- war as a legitimate tool of self-defense but it must be proportional and just
absolute rights of nations according to Bulmerincq
- The Right to existence and its preservation;
- The Right to independence or sovereignty;
- The Right to equality;
- The Right to respect to one another;
- The Right to international relations
main central institutions of the Habsburg monarchy
→ Imperial Chancellery: headed by Archbishop of Mainz, later separate chancellery for hereditary lands
→ separate Chancellery for Bohemia, moved to Vienna after 1620
→ Austrian Imperial Chancellery had wider powers than the Bohemian: also responsible for affairs of the Imperial House and some foreign affairs
→ Imperial Aulic Council: advisory body and also supreme court, dependent on Emperor
→ Aulic Chamber: financial Affairs
→ Aulic War Council
enlightened absolutism
= policies of European absolute monarchs during the 18th and early 19th centuries who were influenced by the ideas of the Enlightenment, espousing them to enhance their power
enlightened absolutist rulers
→ Frederick II of Prussia: religious tolerance, abolition of torture
→ Maria Theresa: still old type of absolutist, but enlightened influence on centralist reforms
→ Joseph II: numerous patents with radical changes (=Josephinism), which were often rejected and most of them he revoked on his deathbed
→ Catherine the Great: enlightened reforms, expanded Russian borders eg. partition of Poland
rule of Maria Theresa
→ new administrative bodies, gubernias: combined internal and financial, subordinate directly to Emperor, often combined several crownlands
→ estates continued to exercise limited administration: Landesausschuss → dual system!
→ reforms of Wenzel Anton Kaulitz: Austrian-Bohemian Chancellery for internal affairs, Aulic Chamber for financial affairs, State Council as supreme advisory body
