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The Invention of Custom: Natural Law and the Law of Nations, ca. 1550-1750 PDF

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The Invention of Custom THE HISTORY AND THEORY OF INTERNATIONAL LAW General Editors NEHAL BHUTA Chair in International Law, University of Edinburgh ANTHONY PAGDEN Distinguished Professor, University of California Los Angeles BENJAMIN STRAUMANN ERC Professor of History, University of Zurich In the past few decades the understanding of the relationship between nations has undergone a radical transformation. The role of the traditional nation-s tate is diminishing, along with many of the traditional vocabularies which were once used to describe what has been called, ever since Jeremy Bentham coined the phrase in 1780, ‘international law’. The older boundaries between states are growing ever more fluid, new conceptions and new languages have emerged which are slowly coming to replace the image of a world of sovereign independent nation states which has dominated the study of international relations since the early 19th century. This redefinition of the international arena demands a new understanding of classical and contemporary questions in international and legal theory. It is the editors’ conviction that the best way to achieve this is by bridging the traditional divide between international legal theory, intellectual history, and legal and political history. The aim of the series, therefore, is to provide a forum for historical studies, from classical antiquity to the 21st century, that are theoretically informed and for philosophical work that is historically conscious, in the hope that a new vision of the rapidly evolving international world, its past and its possible future, may emerge. PREVIOUSLY PUBLISHED IN THIS SERIES The Right of Sovereignty Jean Bodin on the Sovereign State and the Law of Nations Daniel Lee Jews, Sovereignty, and International Law Ideology and Ambivalence in Early Israeli Legal Diplomacy Rotem Giladi The Invention of Custom Natural Law and the Law of Nations, ca.1550– 1750 FRANCESCA IURLARO 1 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Francesca Iurlaro 2021 The moral rights of the author have been asserted First Edition published in 2021 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Public sector information reproduced under Open Government Licence v3.0 (http:// www.nationalarchives.gov.uk/ doc/ open- government- licence/ open- government- licence.htm) Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2021942611 ISBN 978– 0– 19– 289795– 4 DOI: 10.1093/ oso/ 9780192897954.001.0001 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. Series Editors’ Preface The Law of Nations – the ius gentium – had originally been merely the law which the Romans had applied to their – predominantly commercial – relations with non- Romans. It took on a wholly new significance, however, after the ‘discovery’ of the Americas, which had in effect brought into existence what the German jurist Carl Schmitt in 1951 described as ‘the traditional Eurocentric order of international law’. In this book Francesca Iurlaro offers a broad- ranging and powerfully compel- ling new account of just how this new ‘order of international law’ transformed what had once been a form of law based upon a voluntary agreement between peoples, into one which was supposed to be binding on all peoples across the globe – and might thus be imposed by one people upon another. She charts the evolving strat- egies by which a succession of jurists, theologians, and humanists from Francisco de Vitoria in the 16th century until Emer de Vattel in the eighteenth, sought to create a ‘new law which was universally applicable to the global community (orbis), regardless of the specific cultural and historical contexts of local political commu- nities’. This tied the Law of Nations to the Law of Nature (the ius naturae) – the Thomist and neo-Th omist elaboration of the claim that there existed in nature it- self a single basic form of knowledge for all humankind, which was discoverable through the use of human reason. The Law of Nature, however, was in effect a piece of cognitive machinery capable only of generating a universal order of justice. The jurists who contributed to the creation of Schmitt’s ‘traditional Eurocentric order of international law’ required something more precise – and ultimately enforce- able – something capable, in effect, of creating a true positive law. To do this they turned to custom to provide the normative foundation for a universal legal code. In so doing, however, they transformed what was understood to be ‘custom’ from a collection of exemplary regulations – which inevitably varied greatly from one people to another – into ‘an unwritten norm that the jurist could unravel from the diverse manifestations of human history.’ Out of this emerged a new genre: the ‘Law of Nature and Nations’ which dominated the thinking about the relationship between peoples and states from the mid sixteenth until the end of the eighteenth centuries. Custom was now cast, not as the accumulated practices of individual societies but as the collective expression of the consensus of all peoples (consensus omnium gentium). It was, as Francesca Iurlaro explains, interpreted ‘as being both temporally situated – an institution whose foundations resided in Roman law, Christian religion [and] European classical antiquity – and universal at the same time.’ Although there were recognized to exist customs that were restricted to in- dividual communities, and which were, where possible, accepted as valid by the vi Series Editors’ Preface European colonizing powers, the kind of custom capable of sustaining an inter- na- tional law could only, as Francesca Iurlaro explains, be arrived at through sustained inquiries into a history which was believed to provide secure evidence of univer- sality. ‘Authors of the natural law tradition’, as she puts it, ‘invented customary rules of ius gentium precisely in an open dialogue with the past.’ The customs of the an- cient – European – world, ‘constructed and fictionalized as universal’ – came to stand in for those of the orbis terrarum in its entirety. Custom, it was believed was ultimately ‘capable of transitioning the naturalness of reason into the historicity of specific political and cultural context.’ For all that the creators of the Law of Nature and Nations struggled to find in history and literature – rather than in anthropology – a universal customary law, custom remained, of course, stubbornly specific to individual societies, and even if a ‘consensus of all peoples’ were to exist it would, as the 16th- century Saxon jurist Samuel Pufendorf complained, be impossible to find just what it was. Universal consensus could only, that is, ever really be a legal fiction, a counterfactual, a device as Francesca Iurlaro describes it, intended to ‘imagine concepts which are unavail- able, or even impossible, in reality.’ What the Law of Nations had in fact become by the time Pufendorf was writing was not so much the assembled wisdom offered by the customary practices of the peoples of the whole world, so much as what Hugo Grotius described as the record of ‘the continual experience and testimony of the Sages of the Law’ – in other words, not so much a consensus of custom as what Francesca Iurlaro calls a ‘mere agreement among arguments’. It also, of course, meant that only those peoples who had recognized ‘sages of the law’ – and thus a recognizable legal culture – could ever plausibly be part of the “Law of Nations”. It was, as many have subsequently complained, but a short step from this to ar- guing that the Law of Nations was in effect only the law of ‘civilized’ nations, or as the English legal historian Robert Ward declared in 1795, that ‘what is commonly called the Law of Nations . . . is not the Law of all Nations, but only of particular classes of them; and thus there may be a different Law of Nations for different parts of the globe.’ And if that were the case, then the entire universalizing purpose of the project would seem to have collapsed altogether. As many more recent critics, in particular those from the Global South, have protested, what the Law of Nature and Nations in effect did was to divide the world not, as Ward had argued, into many, but only into two: the ‘civilized’ nations of the globe who were bound by the Law of Nature and Nations, and the non-c ivilized who, like pirates, would remain the ‘perpetual enemies of mankind’ – until they were gathered into the folds of the ‘civilized’. By the time Ward was writing, however, the direction of the argument, as Francesca Iurlaro explains, had changed entirely. For the Prussian polymath Christian Wolff – known to his contemporaries as ‘our German Newton,’ – and the diplomat Emer de Vattel, the last and the most lastingly influential of the writers in the tradition of the ‘Law of Nature and Nations’, custom could no longer be Series Editors’ Preface vii constructed, on the basis of supposedly universal history and literary tradition, by ‘the mass of jurists’ who, in Wolff’s view, only ever worked backward from ‘their preconceived opinions’. What Vattel called the ‘customary law of nations’, had, in- stead, if it were to possess any lasting authority, to be ‘founded on a tacit consent, or, if you please, on a tacit convention of the nations that observe it towards each other’. It had, that is, to be discoverable in some real historical past, and recognized as local positive law. The Invention of Custom offers an historical account based both on the wider theoretical issues involved in the attempts to construct a persuasively universal ‘Law of Nature and Nations’ as well as of attempts by the very many jurists involved to apply this to specific cases of inter-s tate relationships from how to deal with cannibalism to such perennial questions as the rights of prisoners of war, and the status of ambassadors. In the end as Francesca Iurlaro writes: ‘Looking at the past is a value- making activity; it relies on a certain, culturally loaded, idea of temporality.’ This book offers what she describes as a ‘history of custom as an episode in the his- tory of historiography’. But although modern international law may claim to have entirely shed its ties to the natural law tradition, and thus to any reliance upon any specific historical past, it is still the case, she argues, that it remains ‘to some extent, a means of ordering the world through histories’. Until the story she has to tell in this book has been fully understood, modern international lawyers run the risk of being condemned, in her own words, to ‘replace old fabrications of the legal im- agination with new founding fathers, new fictions, and new myths.’ Anthony Pagden Acknowledgments It is incredibly hard to do justice to all the people and institutions that supported the publication of this book. It took way more than the proverbial village. However, I will try, while I take full responsibility for any errors or mistakes it may contain. This book is a revised version of my PhD dissertation, which I defended in September 2018 at the European University Institute (EUI), under the supervi- sion of professor Nehal Bhuta. Nehal Bhuta deserves a special place in this thankful note. Over the past years, he has always supported and challenged me with his bril- liant mind and enthusiasm, and always encouraged me to see the theoretical forest whenever I was getting too lost in my textual trees. I am grateful that I had the chance to meet him, and to have been exposed to his intellectual generosity. The openness of the EUI academic environment made this journey even more engaging. Thanks are due to all the people I met there, professors, fellow re- searchers, and friends, who have supported me over these years in various and often unconscious ways. Special thanks are due to the members of my PhD com- mittee, Benedict Kingsbury, Martti Koskenniemi, and Ann Thomson, who offered stimulating feedback, guidance, and support to help me turn this thesis into a book for publication. To achieve this goal, I have benefited from the support of various institutions which provided me with all the time, financial support, and intellec- tual excitement I needed to finish it. I am grateful to Anne Peters and Armin von Bogdandy for their hospitality at the Max Planck Institute for Comparative Public Law and International Law (MPIL) in Heidelberg back in 2018, where I spent the summer as a visiting scholar; and for welcoming me again in 2020 as an Alexander von Humboldt Postdoctoral Fellow. Thanks are due to the Alexander von Humboldt Stiftung for granting me such fellowship, time, and freedom to think, and financial support to work with ease. I am immensely grateful to Benedict Kingsbury, my supervisor at New York University School of Law, where I spent the academic year 2019–2 0 as a Global Postdoctoral Fellow, as well as to the Hauser Global Law School Program for sponsoring the fellowship; and to Marco Geuna (Università degli Studi di Milano), with whom I had the privilege to work as a re- search fellow in the first months of 2019. Thanks are also due to Daniel Allemann, Stefano Bacin, Alessandro Barchiesi, Erica Benner, Tommaso Braccini, Annabel Brett, Hans Blom, Maria Adele Carrai, Paolo Carta, Gianmario Cattaneo, Bhupinder S Chimni, Janet Coleman, Emanuele Conte, Jean D’Aspremont, Grainne de Burca, Wim Decock, Stefano di Bella, Paul J du Plessis, Vanda Fiorillo, Alberto Frigo, Marco Geuna, Frank Grunert, Pablo Kalmanovitz, Claus Kreß, Matthias Kumm, Randall Lesaffer, Karin Loevy, Ian

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