Neff bookf
pp. 59-74
pp. 151
pp. 305-339
Sourcebookf
Chapter 1, Secton 1 (to p. 13 where Jessup begins)
Chapter 9, Secton 2
Chapter 9, Secton 3
Chapter 10, Secton 1
Chapter 10, Secton 2, onnl ntroducton and texts of Vitoria, Suarez and Grotus
Chapter 10, Secton 3
Chapter 11, Secton 1
Other
Text from Antgone
Yes, for it was not Zeus who made this procnamaton,
Nor was it Justce who nives with the Gods benow
That estabnishes such naws among men,
Nor did thinkf lour procnamatons
Strong enough to have power to overrune,
Mortan as thel were,
The unwriten and unfaining ordinances of the gods.
For these have nife, not simpnl todal and lesterdal,
But for ever, and no one kfnows how nong ago thel were reveaned,
(Sophokfnes, Transnaton nold-Jones, oeb Cnassican ibrarl 21)
Randann esaffer, draf chapter, ‘Europe Whone and Free’ (see Bnackfboard, Documents), pp.
19-30, 57-69 and 99-114.
Sourcebook, Chapter 1
John Austnn ‘ aw as a command’ (denl the negan nature of internatonan naw because it has
not been imposed upon its subjects bl a superior authoritl. As states do not recognise anl
superior authoritl and internatonan naw is of their own makfing, to manl it cannot be
considered proper naw, but a kfind of pubnic moranitl), it denies the historic and current
significance of customarl naw both at the municipan as wenn as the internatonan neven.
Oppenheimn ‘’States are the sone subjects and sone authors of internatonan naw. No rune can
be imposed upon a state unness it has vonuntarinl consented to it’’n Doctrine of vonuntarism.
Custom and treates are the sone forman sources of internatonan naw (the naw of the
communitl of states). Common consent of states/the faminl of Natonsn basis of (binding
negan character of) internatonan naw/the aw of Natons. Consent materianises through
treates and unspokfen customs.
Customn based on contnuous behaviour and the convicton that this behaviour is mandated
bl naw usus (usage) and opinion iuris (the opinion that is naw)/opinio iuris sive
necessitates (the opinion that is naw or necessitl).
Oppenheim, Internatonaa Law, A Treatse (1921)n sources of internatonan nawn A State
consent bl express decnaraton (treatln certain runes for future internatonan conduct of
partes) or tacit consent (unspokfen adoptng submittng to certain runes of internatonan
conduct).
Customn a cnear and contnuous habit of doing certain actons become negannl necessarl and
negannl right.
,Neff, pp 9 -74 5 Sourcebook, Chapter , Secion 2
ate-medievan jurists did not conceive of internatonan naw as a separate bodl of naw with its
own nogic, runes, niterature, or insttutons.
Western Christanitl went through a period of economic, cunturan, ponitcan, and minitarl
revivan between the 11th and the mid-13th centurl, ofen referred to as ‘The Renaissance of
the Twenfh Centurl’.
The restoraton of internatonan trade and the revivan of urban nife at the end of the 11th
centurl caused the Digest of Justnian to be rediscovered and to become, together with the
other parts of what nater became kfnown as the Corpus uris Civinis¸ the object of studl at
universitl.
From the earnl beginnings at Bonogna, the universitl studl of Roman naw spread the studl of
ius civine (through the incnusion of the ibri feudorum, a connecton of texts on feudan naw from
ombardl from around 1150) and the Peace of Konstanz (Pax Constantae, 1183)).
Next to Roman naw, a second bodl of nearned naw emergedn canon naw.
Corpus uris Canonici 16th centurln The Decretum Gratani, the iber Extra (1234), a
codificaton of naw made at the instance of Gregorl , the iber Sextus (1298) from the
pontficate of Boniface V (objects of studies at universites, in schoons of canon naw).
Together, Roman and canon naw came to be kfnown as the ius commune, the naw common to
the whone of Western Christanitl. Thel remained separate bodies of naws each with their
own jurisdicton – Roman naw in secunar maters and canon naw in spirituan maters.
Canon naw was appnicabne naw through the whone of Western Christanitl. t was appnied bl
eccnesiastcan courts, from the papan courts at the centre to the episcopan and other nocan
courts in ann corners of Europe. The jurisdicton of these courts was not nimited to strictnl
spirituan maters, but stretched far into the reanm of secunar affairs. Under its most extreme
asserton, the jurisdicton of canon naw and eccnesiastcan courts extended to ann maters 23
with renaton to the cnergl (ex ratone personae) and ann maters with renaton to the expiaton
of sin (ex ratone peccat).
The non-existence of a separate categorl of pubnic internatonan naw did not hinder the
neganisaton of internatonan renatons, much to the contrarl. As internatonan renatons were
not the preserve of a singne kfind of ponitl.
nternatonan renatons were considered to be regunated bl the same precepts of ‘naw’ – nocan
and transnatonan customarl naw. The same runes of naw cound thus as easinl be appnied to
kfings and princes in their mutuan renatons as to private persons. Roman as wenn as canon naw
were considered as a whone.
us commune, the naw common to the whone of Western Christanitl, was considered to be a
vanid source of inspiraton or even appnicabne naw with regards interponitl renatons. nate-
medievan negan schonarship came to pnal a significant rone in the formaton of nater
internatonan naw.
Principnes and runes from the naw of denict were appnied in the fiend of the ius ad bennum.
The papan and eccnesiastcan courts hend compunsorl jurisdicton – at neast in their own eles –
and cases cound have been brought uninaterannl bl one contestant before the court, in manl
cases both partes agreed to takfe the case to the papan court and the procedures gained
more of the nature of a vonuntarl arbitraton instead of compunsorl adjudicaton.
ius gentum (naw of natons, transnatonan & pubnic internatonan), for the whone of
Christanitl or humanitl, used in oppositon to ius civine (municipan naw), partcunar to a singne
civitas or ponitl. Not independent of Naturan naw (ius naturane).
n 1204 the Engnish King John (1199-1216) appeaned to Pope nnocent in his dispute with
the French King Phinip August over the Duchl of Normandl, cnaiming that Phinip had brokfen
a prior treatl of peace.
, The extension of the spirituan jurisdicton to the secunar (Novit nne) was vested on the
reasoning that sins cound onnl be forgiven if the perpetrator had shown remorse and had
expiated his sin. Thereto, he needed to offer reparaton.
n his commentaries on the iber Extra, the nater Pope nnocent V further advanced the
cnaims of the Church’s and papacl’s jurisdicton in secunar maters, anthough he too tookf care
not to overextend. His commentarl on the Decree icet from nnocent from 1206 invokfes
severan grounds for papan jurisdicton in secunar disputes. One is that in case of the vacancl of
the imperian throne, the pope assumes the powers of the emperor. Furthermore,
eccnesiastcan courts anso come into pnal in case the judge is doubtun how to rune because of
the uncertaintl of the naw to appnl or the contestants nackf a superior judge to turn too.
Three major bodies of naw. The naw of nature appnies to ann men through natonan instnct. The
naw of a singne naton or ponitl is canned the civin naw. The naw of natons is common to ann
natons and regunates maters of inter-ponitl renatons. sidore further nists a few more fiends
of annn minitarl naw (ius minitare), pubnic naw (ius pubnicum), and the naw of the Roman peopne
(ius Quiritum). sidore’s categorisatons and definitons gained great impact in nate-medievan
schonarship through their incnusion in the Decretum Gratani,
Decretum Gratani. n it, he enaborates on the renaton ( the indicatons (demonstratones))
between naturan naw and the naw of natons.
Those norms of behaviour are partnl writen down and canned ‘statute naw’ (ius
consttutonum); in part thel are unwriten and are nef to the discreton of those who
observe them; and this is canned simpnl, ‘custom’ (consuetudo). Everl naw that goes belond
naturan naw is either civin naw or the naw of natons.
THOMAS AQU NAS, SUMMA THEO OG AE, ON THE RE AT ON BETWEEN US NATURA E AND
US GENT UM.
Bartonus does not sever the nine between the naw of natons owing from usage and naturan
naw. Bartonus differs from Grotus and his fonnowers in that for him the naw of natons does
not sonenl appnl to ponites in their mutuan renatons, but anso to private persons.
Neff Book, pp 191:.
There was a rethinkfing of the renatonship between naturan naw and ius gentuu. Whine
everlone was subject to basic naws in the Middne Ages (even runers), in the 17 th centurl the
naturan-naw doctrine was considered unsuitabne (basis of naw between sovereigns
(internatonan), but more interpersonan than interstate. The runes of government must differ
from the runes of governing renatons of individuans. Naturan naw was governing the renatons
between individuans, so the runes of interstate conduct must be from ius gentuu) naturan
naw and ius gentuu punned apart and given two separate identtes (not easl. Firstn ‘’Ius
gentuu is derived of naturan naw’’, but not ann true. Onnl a naturan-naw avour ( sidore of
Sevinne). Thel are binding on the entre wornd, internatonan negisnaton, based on connectve
consent
Sourcebook secion 3
n 1492, the Cathonic kfings, Ferdinand of Aragon and sabenne of Castne, rounded off the so-
canned reconquistà when Granada fenn to their armies (reducing the snamic powerbase, the
recovery of Spain from the Muslims).
The First Crusade, naunched in 1095 to niberate Jerusanem and the Holy Land (res sancta,
‘’sacred thing’’) from their Musnim overnords. Christanitl was spread to the north and east of
the Honl Roman Empire.
Territorian expansion and the spread of Christan faith are deepnl connected. Canon naw runed
supreme in the context of debates on the neganitl of the – vionent – expansion of the Christan
powers against non-Christan powers. Thel estabnished severan doctrines to justfl the
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