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Mutatis Mutandis - An Analysis of the transformation of Ius Gentium into Ius Inter Gentes in the Early Modern Period.

Mutatis Mutandis - An Analysis of the transformation of Ius Gentium into Ius Inter Gentes in the Early Modern Period.

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An essay for the 2012 Undergraduate Awards Competition by Conor O'Hanlon. Originally submitted for Law with History at University College Dublin, with lecturer Dr. Declan Downey in the category of Historical Studies & Archaeology
An essay for the 2012 Undergraduate Awards Competition by Conor O'Hanlon. Originally submitted for Law with History at University College Dublin, with lecturer Dr. Declan Downey in the category of Historical Studies & Archaeology

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Published by: Undergraduate Awards on Aug 31, 2012
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10/27/2013

 
 
Mutatis Mutandis
 
 Abstract Mutatis Mutandis
 
 –
An Analysis of the transformation of 
Ius Gentium
into
Ius Inter Gentes
in theEarly Modern Period.
The validity of International law is a perennial quandary of jurisprudential study and itshistorical origins are no less complex. Analyses of international law in this period havefocused upon the differences and distinctions between the Ius Gentium (Law among nations)of Europe prior to the fifteenth century and its successor, the Ius Inter Gentes (Law betweennations) of post-Westphalian nation states. Given the various tumultuous events thatoccurred in Europe during this period, most contemporary accounts characterise theprogression of international law as a dramatic and radical realignment of inter-state relationsfollowing the turmoil of the Reformation, the challenges of overseas exploration andcolonisation and the upheaval that resulted from Ottoman-Turkish advance into South-Eastern Europe.In order to challenge this conclusion, my essay undertook a jurisprudential analysis of thecontemporary historical approach to international law in this period. In particular it evaluatedcritically the assumptions underlying the ordinary historiographical approach.The result was a legally-framed analysis on this important era in international legaldevelopment, encompassing both historical examination as well as the application of contemporary jurisprudential theories surrounding the validity of international law. My essayproposes the argument that international law shou
ld not be considered as a ‘natural law’ but
rather the most natural of positive (or man-made) laws. When evaluated through this prism,the Ius Gentium was not a catastrophic failure but rather an important progression towardspeace and stability in a rapidly expanding world. The progress of international law in thisperiod was not a seismic shift in inter-state relations as is often contended but rather anecessary, nuanced and natural readjustment in the face of altered circumstances.
 
 
Mutatis Mutandis
 
Mutatis Mutandis-
An analysis of the transformation of 
Ius Gentium
into
Ius Inter Gentes
in the EarlyModern Period.
 Ius Gentium
, or the law among nations, was the law governing international relations formuch of the early second millennia, AD. European states were united as the
 RespublicaChristiana
under the common understanding of the
 Ius Commune
(informed by Cannon lawand Roman law) as well as uniform customs and practices
1
. As European nations began toembark upon explorations and inquisitions of both a physical and spiritual nature, that unitybegan to disintegrate. The practices of old diplomacy and spiritual solidarity could no longerbe relied upon in an era of Christian reformation, Islamic expansion and foreign exploration.The international legal system came to be redefined by these global changes in sovereignty,consolidating into Leviathan states.Thus the
 Ius Inter Gentes
, or the law between nations, evolved to regulate an era of international relations pitted by war and uncertainty amongst these powerful actors. Thechaos of the era led many theorists to preserve and incorporate what they could from the
 IusGentium
into the
 Ius Inter Gentes
. This process forced a critical re-examination of theprecepts of 
 Ius Gentium
by scholars such as Francisco de Vitoria, Francisco Suarez, HugoGrotius and others
2
in order to establish the true universality and basis of relations in naturallaw. However, this essay will examine to what extent the use of new nomenclature isnecessary and to what extent
 Ius Gentium
was misinterpreted by others, rather than mistaken
 per se
.Garrett Mattingly contended that, during the development of 
 Ius Inter Gentes,
classicisinghumanists threw the baby out with the bathwater in their attempt to
create a direct link withthe Graeco-
Roman world” and “
rejected and despised the usable medieval past
3
. This authorcontends that the forced re-evaluation of 
 Ius Gentium
was a welcome and necessaryreactionary catalyst in order to redefine the previously untested notion of Thomistic naturallaw in the sphere of international relations. In evaluating this broad international legalprogression this essay will firstly examine the origins and purpose of 
 Ius Gentium
; secondly itwill evaluate the era which precipitated this evolution; thirdly it will contextualise the
1
Discussed most notably by Phillipus Rovenius in his treatise
Respublica Christiana
, (1648)
2
Domingo de Soto and Juan de Mariana are two of the most notable contemporaries. Their work would alsobe continued by Samuel Von Pufendorf and Emmerich de Vattel into the following century.
3
Garrett Mattingly,
Renaissance Diplomacy 
, (New York, 1988), 247
 
 
Mutatis Mutandis
 
principal arguments surrounding the nature of 
 Ius Gentium
and finally it will examine whichprinciples of 
 Ius Gentium
were retained in the establishment of the Westphalian system andthe new
 Ius Inter Gentes
.
The Origins of Ius Gentium. Ius Gentium
would appear to have its roots firmly within natural law. Its conception andgrowth as a concept derived from a number of universal characteristics amongst nationswithin the
 Respublicana Christiana
. The principal difficulty of any natural law theory isdelineating what is truly the natural law and what is merely universal custom
4
. This exercisein divination was exacerbated by the homogeneity of Europe in the Middle Ages. This wouldappear difficult to reconcile with the fact that an individual in the Middle Ages may not haveconsidered themselves European, nor too would they have been likely to consider themselvesGerman, Italian or French. Identity and attachment was usually to localised communities;rarely the state and never Europe
5
.Nevertheless, Europeans had much in common. As
Anthony Pagden outlined in ‘The Ideaof Europe’, Europe was considered a continent of cities, with
its long association of 
urbani
 city states. The democracy, literature and learning of ancient Athens had found continuity anda universal application under the expansive umbrella of Rome. Whereas Greece may havebegun our tradition of legal order, it was Rome which gave it universal application andelevated it to its current position
6
.The dominant cultural and legal hegemony of ancient Rome gradually became synonymous
with the prevalence of the Christian Church. In the words of Lactantius “custom had beenmade congruent with religion”
7
. The importance and efficacy of this religious unity forEurope was even conceded by the likes of hostile Jean-Jacques Rousseau
8
.
Latin’s prevalence
as the lingua franca gave rudimentary idiomatic unity and assisted with the effectiveregulation of European relations under the
 Ius Commune
of Roman, Canon and Customary
4
John Finnis,
Natural Law and Natural Rights
, (New York, 2011), passim
5
Anthony Pagden,
The Idea of Europe
, (Cambridge, 2002), 40
6
Anthony Pagden,
The Idea of Europe
, 42
7
Anthony Pagden,
The Idea of Europe
, 43
8
Anthony Pagden,
The Idea of Europe
, 43. Joseph Marie comte de Maistre similarly concurs with this view in
his 1798 Publication, ‘
Reflections on Protestantism in its Relations with Sovereignty 
’.
In Joseph De Maistre,
 Against Rousseau - On the State of Nature and On the Sovereignty of the People
, translated by Richard A.Lebrun, (Montreal, 1996), xix

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