The Invention of Custom: Natural Law

and the Law of Nations, ca. 1550-1750

Francesca Iurlaro
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The Invention of Custom
 T H E H I S T O RY A N D T H E O RY O F
I N T E R NAT IO NA L L AW
General Editors

NE HAL BH U TA
Chair in International Law, University of Edinburgh

ANTHONY PAG DEN

Distinguished Professor, University of California Los Angeles

BE NJAMI N STR AUMAN N

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-​state 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
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 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-​Thomist 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-​civilized 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-​state 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–​20 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
x Acknowledgments

Maclean, Loris Marotti, Panos Merkouris, Christoph Möllers, Luigi Nuzzo, Paolo
Palchetti, Pasquale Pasquino, Anne Peters, Marie Petersmann, Andrea A Robiglio,
Merio Scattola, Florian Schaffenrath, Peter Schröder, Luca Scuccimarra, Luigi
Silvano, Gabriella Silvestrini, Koen Stapelbroek, Benjamin Straumann, Laura
Viidebaum, Armin von Bogdandy, Christopher Warren, Jan Waszink, Joseph H
Weiler, Tleuzhan Zhunussova, and Simone Zurbuchen, who provided valuable
comments on single chapters or on the project itself, and have all definitely helped
me get this book in a better shape. My conversations with Martti Koskenniemi
offered precious intellectual stimulation throughout the process of writing and
thinking about history and international law; I am deeply grateful for his gener-
osity and support. Anthony Pagden provided essential feedbacks to an early draft
of my chapter on Vitoria, and to the project in general. I am grateful for his encour-
agement. Thanks are due to Thomas Duve, who kindly agreed to let me workshop
the first part of the book at the Max Planck Institute for European Legal History in
September 2020. I owe much gratitude to him and the Salamanca Team. Christiane
Birr, Andreas Wagner, José Luis Egío García, Matthias Lutz-​Bachmann, Manuela
Bragagnolo, Stephan Vogenauer, and Alexandra Woods all helped me think
through the book, and about its weaknesses and its strengths. I also would like to
thank the amazing editors at OUP Law, Jack McNichols and Merel Alstein, for their
valuable support during the publication process, and the anonymous reviewers for
their precious comments to the book manuscript.
My fellow EUI friends Rían Derrig and Dimitri van den Meerschen, as well as
Mark Somos and Edward Jones Corredera, have read various drafts and sections
of this book and considerably improved its shape: a big, heartfelt thank you to all
of them for their friendship and collegiality, which made me feel less isolated in
this strange world named academia. My discussions with Ed were immensely in-
spiring and helped me look at the main narratives of this book with more clarity
and boldness; his intellectual generosity and support have been essential in the last
weeks prior to submission, and nurtured many of the reflections I discuss in the
introduction and conclusion to this book. I am really grateful that Grotius made
us colleagues. A similar huge thank you to Raphael Schäfer, Silvia Steininger, Julia
Emtseva, Erin Pobjie, and Tom Sparks, for helping me feel at home in Heidelberg
with the kindness of their friendship; and to all the participants of the ‘Tuesday
Round’, our weekly meetings at MPIL, for providing essential feedback to the final
drafts of the book.
My family has always been there for me and I cannot thank enough my father
Benedetto, my mother Maria, and my sister Alessandra for their unconditional
love. A big chunk of this book was revised during our first Covid lockdown to-
gether, while cooking, baking nervously, and occasionally yelling at each other.
I am grateful I could spend that particularly unsettling time, and explore what
it meant existentially, with all of them. Giuliano Graziani, Noemi Macerola, and
Antonella Patrizi have provided essential, both personal and professional, support
 Acknowledgments xi

in the final stages of revision of the manuscript. Grazie davvero. Claire Vergerio
would deserve a whole book of thank yous, one that would stretch way beyond
the scope of this one. Most of the thoughts I explore in this book were nurtured by
our conversations, while skinning bellpeppers on a kitchen counter, eating burrata,
dancing in the streets of Brooklyn, or recording endless voice notes for each other.
Merci, my dear friend.
I am also extremely grateful to Luca Bombardieri, whose love and amazing
support have accompanied me throughout the process of thinking of and writing
this book. Finally, I am grateful to Alessio and Leo, two little men with blue eyes
and an unquenchable thirst for pasta whom I was lucky enough to meet while
I was working on this book. They taught me a thing or two about love and light-​
heartedness. In the perhaps futile attempt to freeze in time the memories of all the
pasta dishes we had together, and to prevent these moments from vanishing com-
pletely as time goes by, I dedicate this book to them.
 Contents

Introduction: the ‘Problematic’ of Custom in the Natural Law and

ius gentium Tradition  1
i. The problematic of custom  1
ii. Custom and natural law  3
iii. Custom and history  7
iv. Ius gentium as customary vs. custom as a source of the law of nations  8
v. Methodology: custom as historiographic practice  13
vi. Enters Venus: custom, authority, and civilization  16

PA RT I C U S T OM , C O N S C I E N C E , A N D NAT U R A L L AW
1. The Problematic of Custom in Roman and Canon Law  21
1.1 Custom in Roman law  21
1.2 Custom in the Middle Ages  23
1.3 Custom and empire: how natural law and ius gentium became
customary  28
1.4 Possession, prescription, custom: the problem of time  29
1.5 Local customs and universalizing the native past: law and
historiography as imperial projects  34
1.6 Custom as a case of conscience: natural law, moral persuasion, and
the power of confession  37
2. ‘Like Beginners in Arabic’. Custom and Reason in Francisco de
Vitoria’s Doctrine of ius gentium  43
2.1 A clarification on Vitoria’s texts  43
2.2 Vitoria reads Aquinas (1): on reason and consensus  46
2.3 Vitoria reads Aquinas (2): on natural law and habitus  49
2.4 Consensual ius gentium: a counterfactual proof  51
2.5 A custom under the law of nations: slavery in Vitoria, de Soto,
and Báñez  55
3. Obligation through Agreement, Agreement on Obligation: Ius
gentium as custom in Francisco Suárez  63
3.1 Conscience and habitus: custom in Suárez  63
3.2 Is the ‘international’ community perfect? Ius gentium as custom, and
its source of obligation  66
3.3 The naturalism of habitus and the self-​legitimizing role of the will  70
3.4 How to do things with custom: ius gentium and change  71
xiv Contents

PA RT I I R H E T O R IC A N D
H UM A N I SM : H I S T O R IC I Z I N G C U S T OM
4. Custom as Historiography: Alberico Gentili  77
4.1 Custom and the historical exemplarity of humanism  77
4.2 Historiographic pragmatism and ‘the others’: Alberico Gentili on
custom  89
4.3 Gentili’s ius gentium: justice, empire, and humanitas  95
4.4 Gentili’s custom  101
5. A Literary History of Custom: Hugo Grotius  105
5.1 Consuetudo, mos, consensus: custom as a distinctive feature of the law
of nations  105
5.2 Grotius, Dio Chrysostom, and the ‘invention’ of custom  108
5.3 The ‘poetic’ of natural custom vs the conjectural assessment of the
voluntary customary law of nations: two examples from Grotius’ De
iure belli ac pacis  115

PA RT I I I T H E ‘B I RT H’ O F C U S T OM A RY I U S G E N T I UM A S
AN INDEPENDENT LEGAL REGIME
6. A Turn Inward: the Europeanization of Customary ius gentium  127
6.1 Custom as a social construct: reputation, official historiography, and
the birth of state practice  127
6.2 Custom, love, and perfection: the problem of obligation  134
6.3 Against stylistic dryness: how custom freed itself from antiquity  136
7. Custom in Concentric Circles: Samuel Pufendorf ’s Customary ius
gentium Between Glory and State Interests  141
7.1 Pufendorf ’s main conceptual innovations  141
7.2 Natural law as the science of morality  142
7.3 Law of nations in times of peace: international agreements and
reason of state  146
7.4 The problem of consensus: Pufendorf ’s method  151
7.5 Law of nations in times of war: customary ius gentium and social
reputation  156
8. Christian Wolff and His ius gentium consuetudinarium  162
8.1 Wolff ’s philosophization of customary ius gentium  162
8.2 Wolff ’s system: the psychological foundations of natural law  164
8.2.1 Consensus  168
8.2.2 Perfectio  169
8.2.3 Concursus  170
8.3 Laws of nature, natural law, and ius gentium: the perfection of civitas
maxima  172
 Contents xv

8.4 The parody of ius gentium consuetudinarium: between philosophy

and history  175
9. Vattel’s Doctrine of the Customary Law of Nations  181
9.1 Vattel’s custom between sovereign interests and the principles of
natural law  181
9.2 Vattel vs Wolff: self-​interest as the foundational principle of natural
law  183
9.3 Distinguished, yet not treated separately: the natural and positive law
of nations  185
9.4 Customary law of nations: between facts and principles  189
9.5 Facts with meaning: customs originating in an overlapping of
practice and principles  192
9.6 ‘Non-​indifferent’ customs  196
9.7 Is the violation of custom punishable?  198

Conclusion  202
i. Custom after natural law? Revivals, ruptures, and reflections  202
ii. ‘After’ natural law?  206
iii. An exercise in (dis)belief: custom and historical methodology  209

Appendix  213
Bibliography  235
Index  271
 Introduction: the ‘Problematic’
of Custom in the Natural Law and ius
gentium Tradition

i. The problematic of custom

The story of the intellectual development of custom as a distinctive source of obli-

gation among nations is as controversial as the many conflicting theories about its
origins and ends.1 Custom is an inherently elusive concept. Contemporary inter-
national lawyers conceive of customary international law (CIL) as ‘evidence of a
general practice accepted as law’, as stated in article 38(1)b of the ICJ Statute.2 More
broadly, scholars struggle to understand where custom derives its legal force from;
whether from the moral values it enshrines, and that are intentionally defended by
members of a community to signal their assent to such values; or from the factual
assessment of habits which acquire legal significance by mere repetition over time.
The dualism between ‘values’ and ‘facts’ is at the very core of the so called ‘two-​
elements’ doctrine of CIL. According to such doctrine, CIL consists both of opinio
iuris (a psychological sense of legal obligation attached to a given customary norm)
and state practice, i.e. evidence of its consistent observance by states. This definition
of CIL conceals endless theoretical problems, to the point that some have even sug-
gested abandoning custom as a problematic and ‘obsolete’ source of international

1 Some ‘classical’ texts facing the conceptual ambiguities of custom under international law

are: Hans Kelsen, ‘Théorie du Droit international coutumier’, in Ecrits français de droit international
(PUF 2001) 61–​84; Anthony D’Amato, The Concept of Custom in International Law (Cornell University
Press 1971); Mark E Villiger, Customary International Law and Treaties: A Study of their Interactions
and Interrelations with Special Consideration of the 1969 Vienna Convention on the Law (Nijhoff 1985);
Frederic Kirgis, ‘Custom on a Sliding Scale’ (1987) 81(1) American Journal of International Law 146;
Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (Finnish
Lawyers’ Pub. Co. 1989) (hereafter Koskenniemi, From Apology to Utopia); Karol Wolfke, Custom in
Present International Law (Nijhoff 1993); Michael Byers, Custom, Power and the Power of Rules (CUP
1999) (hereafter Byers, Custom, Power); Anthea Roberts, ‘Traditional and Modern Approaches to
Customary International Law: a Reconciliation’ (2001) 95(4) American Journal of International
Law 757.
2 Statute of the International Court of Justice, art 38.1(b). See also the recent reports on customary

international law from the International Law Commission: Draft Conclusion on Identification of
Customary International Law, with Commentaries (2018) A/​73/​10.

The Invention of Custom. Francesca Iurlaro, Oxford University Press. © Francesca Iurlaro 2021.
DOI: 10.1093/​oso/​9780192897954.003.0001
2 Introduction

law.3 What comes first? Is it the psychological dimension of the acceptance of the
norm, or is it a state’s effective observance of its terms? As scholars have observed,
this doctrine of custom is inherently circular: to evaluate what qualifies as opinio
iuris, one has to rely on some normative criterion. It is problematic, moreover, to
infer such normative criterion from the mere observation of a selection of facts.
And if one abstracts and generalizes conclusions about these facts in the name of
a superior normative principle, then custom appears to be merely a contingent
moral standard, rather than a legally binding construct.4 In spite of these provo-
cations, contributions from scholars and jurists seeking to disentangle the concep-
tual difficulties of CIL are abundant in current literature.5
This is not, however, a book about overcoming the conceptual difficulties of con-
temporary CIL; nor is it a book on the historical genesis of the two-​elements doc-
trine. Rather, its scope is at once more restricted, as the book focuses on the early
modern natural law tradition, and more wide-​ranging, to the degree that it tries to
map the inherent conceptual dynamics of custom along the lines of its intellectual
and historical development as an international legal source.
The concept of custom, although formulated in a different way, is already present
in early modern European debates on natural law and the law of nations. However,
no scholarly monograph has addressed the relationship between custom and the
European natural law and ius gentium tradition. This is a book on this neglected
story. It seeks to answer the question of when and how the concept of customary
international law originated in European debates on natural law and ius gentium.
I argue that this tradition provides us with a solid conceptual framework to con-
textualize and understand the ‘problematic of custom’, namely, how to identify its
normative content. Natural law doctrines, and the different ways in which they
help construct human reason, provided custom with such normative content. By
‘normative content’ I mean a set of fundamental moral values that foundationally
help identify the status of custom as either a fundamental feature or an original
source of ius gentium. Thus, I ask what cultural values and practices facilitated the

3 James P Kelly, ‘The Twilight of Customary International Law’ (2000) 40(2) Virginia Journal of

International Law 449; Daniel H Joyner, ‘Why I Stopped Believing in Customary International Law’
(2019) 9(1) Asian Journal of International Law 31.
4 Koskenniemi, From Apology to Utopia (n 1) 461–​2.
5 Amanda Perreau-​ Saussine and James B Murphy (eds), The Nature of Customary Law: Legal
Historical and Philosophical Perspectives (CUP 2007) (hereafter Perreau-​Saussine and Murphy, The
Nature of Customary Law); David J Bederman, Custom as a Source of Law (CUP 2010) (hereafter
Bederman, Custom as a Source); Brian Lepard, Customary International Law: a New Theory with Practical
Applications (CUP 2010); Michael Scharf, ‘Customary International Law in Fundamental Times of
Change: Recognizing Grotian Moments’ (2014) 25(2) King’s Law Journal 313; Hugh WA Thirlway, The
Sources of International Law (OUP 2014); James B Murphy, The Philosophy of Customary Law (OUP
2014). More recent contributions include Curtis A Bradley (ed), Custom’s Future: International Law
in a Changing World (CUP 2016); Brian D Lepard (ed), Reexamining Customary International Law
(CUP 2017); Monica Hakimi, ‘Making Sense of Customary International Law’ (2020) 118(8) Michigan
Law Review 1487; Peter G Staubach, The Rule of Unwritten International Law: Customary Law, General
Principles and World Order (Routledge 2020).
 Introduction 3

emergence of custom and rendered it into a source of the law of nations, and how
they did so. In this context, as I will explain later in greater detail, mine is a story of
‘state beliefs’ rather than of ‘state practice’.6
Two crucial issues will be at the core of my analysis: first, I will qualify the na-
ture of the interrelation between natural law and ius gentium, and explain why it
matters in relation to our understanding of the idea of custom; second, I will claim
that the process of its formation as a source of law calls into question the role of the
authority of history. The interpretation of the past through this approach can, thus,
be described as one of ‘invention’.

ii. Custom and natural law

Why natural law? What makes it so important to understand the dynamics

originating what I referred to as the ‘problematic of custom’? As ever-​growing lit-
erature on the history of international law suggests, the expression ius naturae et
gentium refers to a non-​homogeneous corpus of doctrines deriving from different
intellectual lineages (juridical, theological, philosophical, literary, etc), and used
to make specific transnational legal arguments. What all these doctrines have in
common, however, is that they identify human reason as the ultimate source from
which this ‘global’ law derives its normative power and ultimate structure –​how
they all differ, however, is precisely around how they conceive of human rationality.
Against this background, debates on the origins of ius gentium are particularly vivid
in the early modern age: does ius gentium derive from natural reason, or from free
will? Does it have natural or positive origins? In commenting and reinterpreting the
relevant passages of Corpus iuris civilis and Thomas Aquinas’s work, in which ius
gentium is discussed, authors have developed a variety of answers to the question.7
As a result, conceptualizations of ius gentium vary extensively and often depend on
the religious affiliations of their authors.8 According to an ‘essentialist’ reading, ius
gentium is considered to be the same as natural law, because human nature itself
exhibits an intrinsically immutable moral core, from which certain absolute legal
principles can be infallibly deduced, or inferred, by observing their manifestations
throughout human history. Other authors draw on a more dualistic account of ius
gentium, as constituted by both positive and natural elements: natural principles

6 Koskenniemi, From Apology to Utopia (n 1) 388.

7 See Peter Haggenmacher, Grotius et la doctrine de la guerre juste (PUF 1984) (hereafter
Haggenmacher, Grotius); Merio Scattola, Naturrecht vor dem Naturrecht. Zur Geschichte des Ius Naturae
im 16. Jahrhundert (De Gruyter 1999) (hereafter Scattola, Naturrecht); Annabel S Brett, Changes of
State: Nature and the Limits of the City in Early Modern Natural Law (Princeton University Press 2011)
37–​61 (hereafter Brett, Changes of State).
8 However, Brett points out that the works of these scholars cannot be reduced to their confessional

affiliation, see Brett, Changes of State (n 7) 66.

4 Introduction

and voluntary acts play an equally crucial role in human life, but the latter are es-
sential to the creation of agreements among sovereigns.9
According to Annabel Brett, this vast number of responses to the question of
divisio iuris were attempts to grapple with, and counter, the narrative of ius gentium
as ‘part of a temporal story about mankind’.10 Ius gentium was either a human in-
stitution, closely related to civil law and thus contingently dependent on sovereign
wills, or a ‘detemporalized’ universal law of reason that shared a resemblance with
natural law, a position commonly defended by Protestant humanists and jurists.
It is useful to place the historical emergence of debates on custom in the con-
text of ius gentium’s inherent contradiction between its atemporal universality
and its temporal situatedness. In the aftermath of the European colonization of
the Americas, theologians and jurists asked whether the latter could change over
time –​and, if so, how could it change while still being consistent with its moral con-
tent? As a matter of fact, the discussion on the customary nature of ius gentium tied
in with a vivid debate concerning its derogability and its independence from nat-
ural law principles. Answering these questions was crucial to solving the problem
of ‘otherness’ with which Europe was confronted in the New World. As European
authors argued that American indigenous people seemed to display a lack of ra-
tionality, capacity of self-​government, and, most importantly, an invincible ignor-
ance of Christ, it was urgent to understand what kind of rules could be applied in
encountering and conquering them. From this perspective, the language of natural
law ideally responded, on the one hand, to the normative necessity of creating a
new law which was universally applicable to the global community (orbis), regard-
less of the specific cultural and historical contexts of local political communities.
At the same time, the discussion of what was deemed to be quintessential of human
nature revealed irreconcilable cultural differences that were rather the product of
history, and, ultimately, of centuries of Christian thought and practice. How was
one to make sense of these differences within the linear narrative of civilization and
conquest?
Custom provided the perfect conceptual tool to navigate these asymmetries: it
was both closely related with natural law and its principles, and a cultural-​histor-
ical product of the West. Against this background, my narrative argues that one of
the first attempts to qualify ius gentium as customary emerged out of a discussion
on whether it was legal to enslave prisoners of war. In Politics, Aristotle provided a
justification for natural slavery based on the natural inferiority of barbarous popu-
lations –​a justification that was famously used by Juan Ginés de Sepúlveda in the
Valladolid debate.11 At the same time, Aristotle admitted the existence of a ‘legal’

9
Haggenmacher, Grotius (n 7) 311–​59.
10
Changes of State (n 7) 77, 196, 212.
11 Juan Ginés de Sepúlveda, Demócrates Segundo (Consejo Superior de Investigaciones

Científicas 1951).
 Introduction 5

type of slavery, namely that originating from the right of the winner to enslave the
prisoners in a war. Relying on this basis, teologos-​juristas of the School of Salamanca
started qualifying the settled practice of enslaving prisoners of war as a custom
under the law of nations. The legal rationale behind this custom relied on its his-
torical (rather than natural) origin: slavery is a human institution introduced after
the Fall to dispose of prisoners of war without having to kill them. This example be-
came, thus, a topical one bearing witness to the difference between natural law and
ius gentium, and of the latter’s capability of emancipating itself, within limits, from
natural law. It was also a foundational one, as it provided one of the first attempts
at grasping the customary nature of ius gentium, as well as its ambiguous nature
as a civilizational project: as I will show, only non-​Christians could be turned into
slaves, while a further ‘Christian custom of freedom’ prevented Christians from
enslaving prisoners of their same faith. In other words, while being in accordance
with the natural principle of not killing fellow Christians, this custom was a human
invention, insofar as it aimed at curbing the horrors of war, and ultimately made
the institution of enslavement a profitable one. Custom’s close kinship with natural
law made it natural enough to be normatively cogent; at the same time, history
turned custom into a construct that could be mobilized to face the challenges of
conquest, civilization, empire, and global trade.
For this reason, I argue that Brett’s ‘detemporalized’ narrative of early modern
doctrines of ius gentium does not do full justice to the problematic of custom.
Custom was understood as being both temporally situated –​an institution whose
foundations resided in Roman law, Christian religion and, as I will argue, European
classical antiquity –​and universal at the same time. Crucially, its temporal and spa-
tial validity was carefully constructed and fictionalized as universal. As I will show,
custom was a normative and creative project of historical invention of new rules
in the mould of natural law. The bulletproof normative validity of natural law was
rhetorically exploited to convey the immutability, inevitability, and moral urgency
of custom.
Custom emerged as a fundamental legal category capable of transitioning the
naturalness of reason into the historicity of specific political and cultural context.
The emphasis on the normative aspects of custom will allow me to problematize
two narratives: first, positivism, and, second, the idea of ‘state practice’, which is
traditionally associated with custom. While contemporary lawyers think of posi-
tivism as opposed to natural law, I shall challenge this overly abrupt distinction
and depict natural law and positive law as symbiotic forces in the creation of the
language of custom. Early modern arguments on the voluntary nature of custom,
far from showcasing the alleged ‘modernity’ of early modern ius gentium as an his-
toriographic category, were rather comprised within a process that has been rightly
described as one of construction of human agency.12 The study of the meaning of

12 Brett, Changes of State (n 7) 37–​61.

6 Introduction

the word ‘consensus’, and the foundational role it plays for custom, serves to il-
lustrate this point. Far from identifying a shared agreement of political wills on
a given custom (with the notable exception of Suárez), before the 17th century
consensus was understood as an abstract consensus of religious and moral views.
Alternatively, the concept of ‘consensus’ referred to a fictional agreement of ex-
perts and authors from the past who validated, with the authoritativeness of their
testimony, the legitimacy of a given custom. Proof of customary law of nations
emerged, thus, not from facts, but from arguments in favour of or against the al-
leged applicability of a given custom.13 As I will clarify in the next section, the place
from which these arguments were drawn is history and, in particular, the European
classical tradition.14
Secondly, along these lines, I will suggest that very notion of ‘state practice’ (i.e.
the idea of inferring the existence of binding customary rules from generalized
patterns of behaviour) was relatively undertheorized until the late 17th century.
This does not imply that customary rules were not a reality of international re-
lations from the Middle Ages onward.15 Nor do I mean to suggest that custom
emerged from the void: as I will show with the custom of prisoners of war, it grew
as a response to the all too real problems raised by –​Mediterranean, and eventu-
ally transatlantic –​trade. My argument, however, is that early modern jurists and
theologians rarely turned to their contemporary practice to find sources of legit-
imacy of custom. On the contrary, they sought to construct its normative core by
binding it tightly to natural law principles, and portraying these connections as in-
evitable, often challenging or condemning the legal standards of their age. Natural
law, therefore, provided them with an epistemic and moral authority upon which
to ground customary rules of ius gentium.
Thus, this book seeks to retrace a narrative of custom as a process of historiciza-
tion of natural law. To do so, I have chosen a selection of authors that have navigated
the dichotomy between natural law and history, starting from debates on the legal
status of the newly discovered populations in the Americas. I have then moved to
how European authors of the ius gentium tradition ‘invented’ the customary law of

13 Gerald J Postema, ‘Custom, Normative Practice, and the Law’ (2012) 62 Duke Law Journal 707–​38,

717, 738. Similarly, famous postcolonial international lawyer Bhupinder S. Chimni has recently vindi-
cated the importance of deliberative reasoning (what Postema referred to as ‘custom as an argumen-
tative practice’) for a postmodern doctrine of customary international law, which is inclusive of the
perspectives of Third World States (Bhupinder S Chimni, ‘Customary International Law: a Third World
Perspective’ (2018) 112(1) American Journal of International Law 1.
14 Here I take the concept of historical testimonies from the classical past in Straumann’s sense, as ‘an

umbrella term . . ., which would include not only accounts of historical events, but also works in the his-
tory of philosophy and law, as well as works of classical and, for Grotius, primarily Roman philosophers,
lawyers, orators, and poets’. See Benjamin Straumann, Roman Law in the State of Nature: The Classical
Foundations of Hugo Grotius’ Natural Law (CUP 2015) 72 (hereafter Straumann, Roman Law).
15 See Chapter 1 of this book; see Wilhelm Grewe, The Epochs of International Law (De Gruyter 2000)

89; for a more contemporary account, see Michael Jucker, Martin Kintzinger, and Rainer Christoph
Schwinge (eds), Rechtsformen internationaler Politik: Theorie, Norm und Praxis vom 12. bis 18.
Jahrhundert (Duncker & Humblot 2011).
 Introduction 7

nations through the language of history and myth-​making, internalized its cultural
values, and, eventually, abandoned such values.

iii. Custom and history

To explain the process of the invention16 of custom, I approach two dimensions

that are at the intersection between history and natural law. First, to conceive of
customary ius gentium as a historical artefact poses the question of what kind of
universalist claim it entails, and urges us to reflect on what teleology of history it re-
lies upon. Second, it implies a discussion of the specific politics of the histories that
were used to construct legal norms for the present.17
As far as the first ‘teleological’ aspect is concerned, the question arises as to
whether and to what extent we should deem custom to be an imperial project: if
customary ius gentium is a product of a certain kind of history, and the specific
context it applies to is Christianity, then how we approach the fabrication of such
a history becomes crucial. As a matter of fact, historical pluralism and the coexist-
ence in time of different cultural, political, and religious systems (Christian Europe
on the one hand, and the indios on the other) was loaded with a teleological version
of history –​one where the Spanish conquistadors sought to save the indios from
barbarism and, most importantly, from their ignorance of Christ. Imagining a cus-
tomary ius gentium therefore required a certain degree of historical and legal ab-
straction. It had to be imagined from scratch beyond the practicalities of colonial
governance, and often directly challenging native narratives, in order to create a
Christian community of Christian values. Only then could local indigenous popu-
lations be persuaded and reoriented through religious conversion.
To conceive of ius gentium as customary calls into question the authority of his-
tory and the politics behind interpretations of the past. The interplay between the
origin of custom in natural law, and the different historiographical practices that
informed it, will constitute the fundamental narrative thread of this book. Building
on this approach, I will argue that custom was constructed, mostly by humanist
jurists, by fabricating European cultural identity through the language of classical

16 Anne Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International

Law’ (2012) 2 History and Theory of International Law Series <https://​iilj.org/​wp-​cont​ent/​uplo​ads/​

2016/​08/​Orf​ord-​The-​Past-​as-​Law-​or-​Hist​ory-​2012-​1.pdf> accessed 26 July 2020 (hereafter Orford,
‘The Past as Law or History?’). D’Aspremont defines customary international law as ‘the invention of an
imaginary genealogy’: see Jean D’Aspremont, International Law as Belief System (CUP 2017) 87. On the
relationship between invention, tradition, and custom, see Eric Hobsbawm, ‘Introduction: Inventing
Traditions’, in Eric Hobsbawm and Terence Ranger (eds), The Invention of Tradition (CUP 1983).
I thank Edward Jones Corredera for directing me towards this text.
17 On natural law and historicism, see Leo Strauss, Natural Right and History: Walgreen Foundation

Lectures (University of Chicago Press 1999), especially 17 on how historicism, despite its alleged lack of
transcendental assumptions, implies reliance on an unspoken universal truth: that we all agree to subju-
gate to the authority of history.
8 Introduction

antiquity. The story of custom was a fictional attempt to frame this identity as uni-
versal and immutable. Such fiction was then perpetuated by means of literary in-
vention and canonization.18
Crucially, the story of ius gentium cannot be separated from the material aspects
of its cultural transmission. A parallel history unfolds between the lines of the
marginal notes that support the jurists’ arguments in their texts. Such a story was
crafted on the shoulders of the impressive amount of scholarship that humanists
were producing throughout Europe by exploring a variety of literary forms –​bi-
lingual editions of Latin and Greek classics, translations into vernacular languages,
original manuscripts, commentaries, and so on.19 This scholarship created systems
of authority that were used by jurists as canons of order to provide legitimation to
custom; additionally, it helped them construct an ample casuistry of customary
rules of ius gentium based on the values and exempla of the classical past.

iv. Ius gentium as customary vs. custom as a source

of the law of nations

A note is needed on terminology. Throughout the book, I use two different opera-
tive conceptualizations of custom. Neither of them is expressly used by the authors
I take under consideration, but they help us separate a two-​stage process in the his-
torical development of the concept. With the expression ‘ius gentium as customary’,
I refer to the idea that ius gentium has some distinctively customary features. This
means that certain customary rules of ius gentium exist, but that they do not form
an independent legal regime altogether, separated from ius gentium (Parts I and
II).20 Rather, whenever I conceive of custom as an autonomous legal regime that

18 However, Brett later admits her detemporalized narrative of ius gentium is paradoxical: Brett,

Changes of State (n 7) 196.

19 In conceding primacy to the textual elements of transmission of ius gentium doctrines, I share the

approach adopted by Straumann, Roman law (n 14); and by Christopher Warren in his Literature and
the Law of Nations (OUP 2015); see also Christopher Warren, ‘History, Literature, and Authority in
International Law’, in Simon Stern and others (eds), The Oxford Handbook of Law and Humanities (OUP
2020) 565. On the material aspects of transmission, see Craig Kallendorf, The Protean Virgil: Material
Form and the Reception of the Classics (OUP 2015); Anthony Grafton, The Footnote: A Curious History
(Harvard University Press 1997); Anthony Grafton and Lisa Jardine, From Humanism to the Humanities.
Education and the Liberal Arts in Fifteenth and Sixteenth-​Century Europe (Duckworth 1986); Cesare
Vasoli, La dialettica e la retorica dell’umanesimo: ‘invenzione’ e ‘metodo’ nella cultura del XV e XVI secolo
(Feltrinelli 1968). I refer to these texts for further bibliographical references.
20 See Chapter 1 on Arthur Schiller’s distinction between custom and customary law in Roman

law. The difference between custom as a body of customary rules and customary law as an inde-
pendent legal system, enforced by a specific territorial entity, relies on late 19th to early 20th century
German debates on consuetudo. See Siegfried Brie, Die Lehre vom Gewohnheitsrecht. Eiene historisch-​
dogmatische Untersuchung (Minerva Verlag 1899); Rudolf Köstler, ‘Consuetudo legitime praescripta.
Ein Beitrag zur Lehre vom Gewohnheitsrecht und Privileg’ (1918) 39(8) Zeitschrift der Savigny-​Stiftung
für Rechtsgeschichte: Kanonistiche Abteilung 154; Ennio Cortese, La norma giuridica. Spunti teorici del
diritto comune classico (Giuffrè 1964).
 Introduction 9

is distinguished from other sources of the law of nations (such as natural law prin-
ciples, treaties, etc), I refer to ‘custom as a source of the law of nations’ (Part III).
Building on this distinction, I will now briefly sketch an outline of the chapters.
Part I begins by contributing an overview of the concept of custom in the Roman
and canon law tradition (Chapter 1). This will introduce the vocabulary, and some
problematic aspects, of custom, that is, its inherently moral value and the contro-
versial imperial dynamics embedded in it. While this section is far from exhaustive
(an accurate analysis of the Roman and Medieval account of custom would inevit-
ably fall out of the scope of this book), it sets the stage for the early modern reprisal
of the concept. In Chapter 2, I then move on to the analysis of the different strat-
egies that were used by theologians of the Second Scholastic (Francisco de Vitoria,
Domingo de Soto, and Domingo Báñez). These influential theologians thought of
ius gentium as partly made of natural law principles, partly of customs, and that it
was possible to identify these through compliance with European religious beliefs.
While vindicating the interdependence of custom and Christian values, they ques-
tioned to what extent ius gentium could depart from natural law without contra-
dicting its moral tenets, and still give leeway for new practices to be established and
new political necessities to be voiced.
These authors did not theorize the idea of custom as a fully independent source
of the law of nations. Yet, their account was foundational because they acknow-
ledged custom as an essential element of ius gentium, and vindicated the historical
origins of specific customs. They identified the aforementioned custom concerning
the enslavement of prisoners of war as a topical example of the customary origin
of ius gentium. Custom responded, on the one hand, to the civilizing need to ‘ha-
bituate’ the indigenous populations to Christian morality and natural law, and to
the genuine belief that everyone could change or be convinced to convert, if pro-
vided with apt means to do so. On the other hand, custom served as a jurisdictional
basis for the exercise of fraternal correction through confession. This would allow
indigenous people to ‘correct’ their habits, clearly perceived of as deficient and un-
civilized as opposed to European standards, and to eventually join the Christian
community. These peoples would then benefit from the instruments of legal pro-
tection that were granted to them by virtue of their membership.
These theologians acknowledged the historical origins of custom, but they did
not substantiate it with anything more than genealogical references, while leaving
open a question of political agency. The question remained: who introduced
custom? Chapter 3 focuses on Francisco Suárez’s attempt at securing the moral
and religious foundation of custom through his notion of ‘perfect community’, im-
agined as the political society of Christian sovereigns. In the fragmented space of
early modern European politics, however, religious schisms within Christianity
alienated European sovereigns and their interests, instead of uniting them under
a common ground. Aware of the disruptive potential of religious divisions, jurists
such as Alberico Gentili and Hugo Grotius took a different path to conceptualize
10 Introduction

the customary nature of ius gentium. Thus, in Part II I explore how the notion of
custom was used to trace the legal boundaries of Europe through the language
of historical imagination by Alberico Gentili (Chapter 4) and Hugo Grotius
(Chapter 5). Both authors, by conceiving of natural law itself as an historical arte-
fact, were extremely influential in creating a literary canon for custom. After the
discussion over the ‘affair of the Indies’ dwindled, and European powers become
even more aggressive in competing for global trade and access to resources, it was
urgent to create the language of customary ius gentium through the invention of
topoi from the European classical past. Custom became, in this way, what an in-
vented consensus of past scholars said it was.
From this perspective, I will argue that, in the attempt to reconcile natural law
with ragion di stato, Alberico Gentili compared the authoritative judgments of
classical scholars with more contemporary historical accounts, such as the works
of the Italian historians Francesco Guicciardini and Paolo Giovio. By integrating
these two languages, Gentili opened a Eurocentric window for non-​European his-
torical narratives to emerge, as shown by his comparative interest for Ottoman
customs. This comparative afflatus disappeared, to some extent, in Grotius, who
framed the question of custom as one of interpretation: how can we infer will
from tacit consensus? How do we think of custom as a voluntary phenomenon
originating in human free will and liberty that does not involve any actual human
action, and relies instead on silence? Grotius’s answer to this question consisted in
radicalizing custom’s spontaneous, natural value. Such ‘spontaneity’, however, was
rather a carefully crafted creation of examples derived from classical history. As a
result, by depicting the classical past as the ultimate touchstone of legal and histor-
ical reliability, Grotius generally dismissed contemporary history when looking for
custom’s normative core. This resulted in a loss of comparative study of custom and
alterity.
Part III focuses on the 17th century German reception of Grotius’s account of
custom as an interpretative practice. It argues that the relativization of ius gen-
tium as a distinctively European science made it possible for jurists to conceive
of custom as an independent source of law (Chapter 6). I argue that a proper, dis-
tinctive concept of custom as a source of ius gentium (although still not entirely
binding) emerged as a ‘precipitate’ of Samuel Pufendorf ’s process of systematiza-
tion of natural law (Chapter 7). By vindicating the existence of an extra-​legal space
where nations regulate their mutual affairs in times of war through non-​binding
customs, Pufendorf managed to create a genuine concept of custom as a source of
the law of nations. He therefore occupies a central role in this narrative. Pufendorf
emphasized the widely accepted cultural significance of the most important prin-
ciples underlying custom: glory and interest. Pufendorf ’s original account built on
a fundamental methodological innovation: the integration of classical history with
the analysis of contemporary events. Pufendorf used examples from official his-
toriography to observe how glory and interest informed customary ius gentium,
 Introduction 11

and to suggest that it was convenient for sovereigns to respect them even if they
are not binding strictly speaking. The typical partiality of official historiographers,
writing on behalf and in the interest of their sovereigns, as opposed to the object-
ivist afflatus of ancient history, became a crucial indicator of custom. Such parti-
ality was exploited by Pufendorf to argue for the relativism of certain customs and
to make the position of a state, concerning its acceptance of a given custom, more
explicit.
After Pufendorf, however, to claim that custom was a commonly recognized
value and source of the law of nations was not enough to consider it a source of
obligation. Nor was it sufficient to acknowledge that arguments from the past
progressively and cumulatively crystallized into a notion of customary ius gen-
tium coincident with European cultural history. That custom enshrined cultural
values recognized by the community of European states –​a collection of values
that Christian Thomasius would unite under the conceptual umbrella of decorum –​
offered no guarantee of its effective applicability. Hence, the challenge taken up by
the authors who followed in Pufendorf ’s footsteps was to figure out ways of making
custom effectively binding for states, both in times of war and peace. To achieve
such a goal, authors constructed a successful strategy by postulating the formal
and substantial equation between custom and treaties. In drawing this analogy,
they were inspired by the impressive number of collections that provided a care-
fully documented historical treatment of the most important European treaties,
such as Leibniz’s famous Codex iuris gentium diplomaticum (1693). A funda-
mental figure in this process of systematization of custom was Christian Wolff
(Chapter 8). Wolff specifically addressed the challenge of the legitimacy of ius
gentium consuetudinarium, as he expressly called it. In substantiating its validity
and cogency as a source of law, Wolff referred to custom as a distinct, independent
customary regime within the law of nations. This very technical formulation of
custom as just ‘one’ of the sources of ius gentium constituted a fundamental break
in this narrative. Wolff claimed that Grotius’s mistake lay precisely in the fact that
he equated customary ius gentium with the whole voluntary ius gentium.
The challenge of further developing the practical implications of Wolff ’s theory
were taken up by Emer de Vattel (Chapter 9), whose book on the law of nations was
incredibly widely read and discussed by jurists. To provide historical examples of a
general custom of moderation to be applied in international affairs, Vattel claimed
that, in the study of the law of nations, modern historiography should be preferred
over ancient history. Vattel not only accused Grotius of overburdening his readers
with plenty of antiquarian information. He also argued that indulgence in such an
antiquarian argumentative style risked being a mere ‘parade of erudition’ and, ul-
timately, resulted in the alienation of the reader.
The loss of interest in classical antiquity, and into the paradigmatic values em-
bedded in it, ran parallel with the process of systematization of custom as a source
of the law of nations. The more custom became an independent, positive source
12 Introduction

of obligation, the more the classical references that shaped its normative origins
disappeared into oblivion. This suggestion completes the temporal and conceptual
narrative arc that this book seeks to draw. While this change in perspective ori-
ginated from a different cultural, and even literary, sensitivity that emerged from
a change in 18th-​century historiographic theories and practices, the cultural and
literary references that originally shaped the normative core of custom were grad-
ually forgotten. Such normative core eventually sedimented into what has been
called the ‘common European conscience’ –​or, rather, as I would reframe it, the
common European unconscious of progressive legal professionalization. In this
context, Vattel could be considered one of the first representative authors of this
legal culture.
From this perspective, the Appendix seeks to provide a textual genealogy of
this legal unconscious. By recovering and making visible the cultural references
on which several topoi of custom were constructed from Gentili to Vattel, the
Appendix provides some examples of customs under the law of nations and the
arguments that helped shape them over time. It challenges and deconstructs the
alleged inevitability and universality of natural law.21 Such inevitability, as the
Appendix shows, was in fact carefully crafted through the construction of a literary
canon, selected and perpetuated over time by self-​fashioned canonical authors.
In the conclusion, I address some of the theoretical underpinnings of this his-
torical analysis, by asking whether custom is a fiction, and, if so, why international
law continues to invest in it. If it provided a justification for slavery and a system-
atic legal language for the exclusion of non-​Europeans, legitimate doubts arise
as to whether custom can ever serve as a foundation of law in the modern world.
Scholars have accused custom of being a politically biased source of law. Indeed,
because it traditionally relies on tacit consensus it can appear to claim the hege-
monic representation of the most powerful states, which over time had the power
and influence to impose respect for a customary rule of their choice and to turn it
into an established and generally accepted practice.22 In this respect, less influen-
tial states (mostly, non-​European states) would find themselves in the position of
having to accept and observe a customary rule, the formation of which had not in-
volved their contribution or explicit consent.23 In a similar manner, the ‘volatility’
21 See Isaiah Berlin, ‘Historical Inevitability’, in Isaiah Berlin, Liberty (OUP 2002) 109, 164. On a

more recent account of how natural law doctrines have helped foster the language of historical inev-
itability by relying on the imaginative power of the laws of nature and physics to impose order upon
the world, see Michel Stolleis and Lorraine Daston (eds), Natural Law and the Laws of Nature in Early
Modern Europe: Jurisprudence, Theology, Moral and Natural Philosophy (Taylor and Francis 2016);
Lorraine Daston, Against Nature (MIT Press 2019); see also Ingo Venzke and Kevin Jon Heller (eds),
Contingency in International Law: On the Possibility of Different Legal Histories (OUP 2021).
22 As pointed out by Byers, Custom, Power (n 1) 3–​20.
23 On this aspect, see George RB Galindo, ‘Customary International Law and the Third World: Do not

Step on the Grass’ (2017) 16(2) Chinese Journal of International Law 251 (hereafter Galindo, ‘Customary
International Law and the Third World’); Anthony Anghie, Imperialism, Sovereignty, and the Making of
International Law (CUP 2005) (hereafter Anghie, Imperialism); Mark Toufayan, Emmanuelle Tourme-​
Jouannet, and Hélène Ruiz Fabri (eds), Droit international et nouvelles approches sur le tiers-​monde: entre
 Introduction 13

of CIL (in contrast to positive, written law) can be a powerful, rhetorical device in
the hands of more influential states that make use of it to pursue their own interests
or political agendas. To solve this problem, international lawyers have suggested
increasing the recourse to treaty law to overcome the ‘democratic deficit’ of CIL.24
These political concerns are a consequence of the widely perceived cultural insuf-
ficiency of CIL as a source of legal obligation in facing the pluralist challenges of a
global world. In other words, not only is CIL the result of Western states politically
imposing their own agendas on the world, but also of their own cultural mindset
and legal tradition.25

v. Methodology: custom as historiographic practice

The study of the historicity of custom contributes to a broader debate. International

law’s recent ‘turn to history’ has generated different histories of international law.26
However, its most fundamental and cumbersome question still remains un-
answered: is it possible, or even meaningful, to make sense of present problems
by looking at the past?27 When addressing the problem of custom, the suspicion

répétition et renouveau/​International Law and New Approaches to the Third World: between repetition
and renewal (Société de legislation comparée 2013).

24 See John O McGinnis, ‘The Comparative Disadvantage of Customary International Law’ (2006)

30(1) Harvard Journal of Law and Public Policy 7.

25 Again, Galindo, ‘Customary International Law and The Third World’ (n 23) 8–​9; however, Anthea

Roberts sees this phenomenon in a comparative perspective and claims that, while customary equilibria
are a sure matter of balance of power, the rise of Third World Approaches to International Law (TWAIL)
is helping the emergence of new, non-​European, customary rules via ‘unlike-​minded approaches’.
Anthea Roberts, Is International Law International? (OUP 2017) 279.
26 See Reinhart Koselleck, The Practice of Conceptual History: Timing History, Spacing Concepts

(Stanford University Press 2002); Martti Koskenniemi, ‘Why History of International Law Today?’
(2004) 4 Rechtsgeschichte 61; George RB Galindo, ‘Martti Koskenniemi and the Historiographical Turn
in International Law’ (2005) 16 European Journal of International Law 539; Alexandra Kemmerer, ‘The
Turning Aside: On International Law and its History’, in Russel Miller and Rebecca Bratspies (eds),
Progress in International Law (Brill 2008) 71; Thomas Skouteris, ‘Engaging History in International Law’,
in José Maria Beneyto and David Kennedy (eds), New Approaches to International Law (TMC Asser
Press 2012) 99, 103 (hereafter Beneyto and Kennedy, New Approaches); Martti Koskenniemi, ‘A History
of International Law Histories’, in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of
the History of International Law (OUP 2012) 943 (hereafter Koskenniemi, ‘A History of International
Law Histories’); David Armitage, ‘Modern International Thought: Problems and Prospects’ (2015)
41(1) History of European Ideas 116; Matthew Craven, ‘Theorizing the Turn to History in International
Law’, in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of Theory of International Law
(OUP 2016) 21 (hereafter Orford and Hoffmann, The Oxford Handbook).
27 Koskenniemi, ‘A History of International Law Histories’ (n 26) 943. Recent contributions ad-

dressing the debate include: Lauren Benton, ‘Beyond Anachronism: Histories of International
Law and Global Legal Politics’ (2019) 21(1) Journal of the History of International Law 7; Benjamin
Straumann, ‘The Energy of Concepts: The Role of Concepts in Long-​Term Intellectual History and
Social Reality’ (2019) 13 Journal of the Philosophy of History 1; Orford, ‘The Past as Law or History?’
(n 16). On genealogy, see Michel Foucault, ‘Nietzsche, Genealogy, History’, in Paul Rabinow (ed), The
Foucalt Reader (Panteon Books 1984) 76. On the problems concerning the use of genealogy in the his-
tory of international law, see Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi (eds), Time,
History and International Law (Martinus Nijhoff Publishers 2007); Akbar Rasulov, ‘New Approaches
14 Introduction

emerges that this type of historical mentality might be exactly one of the problems
of international law. As a matter of fact, the history of custom tells us something
about the inveterate relationship between international law and historiographic
practices. What I want to suggest here is that the history of international law is not
just an a posteriori critical reflection on the international legal order –​a sub-​genre
for lovers of intellectual escapism in search of a distraction from the many prob-
lems of the contemporary world –​but, rather, that one of the many successful pro-
jects of international law was (and still is) the ambition to order the world through
histories.28
My method is intellectual-​historical. I have used ‘history of historiography’ as a
common thread to connect context, texts, and their reception. This allowed me to
read authors on different levels of interpretation, by placing their texts within the
context of their own mentality and, at the same time, by comparing our reception
of them with their reception of their own past. From this perspective, the author’s
dialogue with selected sources from the past also becomes a source of information
about the context in which they live, about the intellectual debates they were in-
volved in, and their polemical adversaries. By combining approaches taken from
global history,29 history of disciplines, history of philosophy,30 histories of mor-
ality,31 and classical reception studies,32 I have tried to encourage the contemporary

to International Law: Images of Genealogy’, in Beneyto and Kennedy, New Approaches (n 26) 151;
Kate Purcell, ‘Faltering at the Critical Turn to History: Juridical Thinking in International Law and
Genealogy as History, Critique and Therapy’ (2015) 2 Jean Monnet Working Paper <https://​jeanmo​nnet​
prog​ram.org/​paper/​falter​ing-​at-​the-​criti​cal-​turn-​to-​hist​ory-​juridi​cal-​think​ing-​in-​intern​atio​nal-​law-​
and-​geneal​ogy-​as-​hist​ory-​criti​que-​and-​ther​apy/​> accessed 26 July 2020; Andrea Bianchi, International
Law Theories: An Inquiry into Different Ways of Thinking (OUP 2017)

28 I have briefly addressed this issue in Francesca Iurlaro, ‘International Legal Histories as Orders: An

Afterword to Martti Koskenniemi’s Foreword’ (2019) 30(4) European Journal of International Law 1115.
29 On global approaches towards international legal history, see Bardo Fassbender and Anne Peters,

‘Introduction: Towards a Global History of International Law’, in Fassbender and Peters, The Oxford
Handbook (n 26) 1; Thomas Duve, ‘Global Legal History: A Methodological Approach’ (2016), 4 Max
Planck Institute for European Legal History Research Paper <https://​pap​ers.ssrn.com/​sol3/​pap​ers.
cfm?abst​ract​_​id=​2781​104> accessed 26 July 2020.
30 On the history of disciplines, see for example Donald R Kelley (ed), History and the Disciplines.

The Reclassification of Knowledge in Early Modern Europe (University of Rochester Press 1997) (here-
after Kelley, History and the Disciplines); Loren Graham and Wolf Lepenies (eds), Functions and Uses of
Disciplinary Histories (Springer 1983); Ellen Messer-​Davidow, David R Shumway, and David J Sylvan
(eds), Knowledges: Historical and Critical Studies in Disciplinarity (University Press of Virginia 1993).
More specifically, on the relationship between history and philosophy, see, among others: Richard Rorty
and others (eds), Philosophy in History: Essays on the Historiography of Philosophy (CUP 1984); Alan J
Holland (ed), Philosophy: its History and Historiography (Reidel 1985); Jorge E Gracia, Philosophy and
its History: Issues in Philosophical Historiography (State University of New York Press 1992); Giovanni
Santinello, Storia delle storie generali della filosofia (La Scuola 1979).
31 Tim J Hochstrasser, Natural Law Theories in the Early Enlightenment (CUP 2000).
32 Lorna Hardwick, Reception Studies (OUP 2003); Lorna Hardwick and Christopher Stray (eds), A

Companion to Classical Reception (Wiley 2008); Craig Kallendorf and others (eds), A Companion to the
Classical Tradition (Blackwell Publishing 2007); William Brockliss and others (eds), Reception and the
Classics: an Interdisciplinary Approach towards Classical Tradition (CUP 2011).
 Introduction 15

reader to distinguish between and appreciate the richness of the different layers of
receptions.
Ultimately, the analysis of the history of the reception of classical antiquity into
international legal discourse reinforces the idea that custom is the cultural product
of European civilization. Custom was not only the result of the political and diplo-
matic interaction of European nations, but also an effect of their cultural proximity,
as it enshrined a number of values (like those, for example, of moderation, glory,
and honour) that sovereigns conceived of as important. These values were made,
therefore, binding. And, more importantly, it was in this shared communal belief
system that its normative foundations lied. Since such values were best expressed
in the most authoritative classical authors of European culture (Cicero, Seneca,
poets such as Virgil, historians such as Tacitus or Livy, etc), most of the approach
taken in this book could be defined literary-​historical.33
By retracing and deconstructing the references that make authority possible,
I argue that it is possible to disrupt the narratives of international law’s mythical
foundation.34 The choice of this specific angle of inquiry also explains the selection
of canonical authors. The argumentative choices of the authors I selected show how
theology and classical history have a gravitas that is carefully exploited to construct
authority. Customs and canons are both self-​perpetuating and self-​referential sys-
tems of belief. They both rely on carefully constructed external authorities that
are progressively internalized through topical repetition, as if they were ‘stamps
of approval in an endlessly repeated circle of institutional validation’.35 As argued
by Edward Said, canons are necessary to the ‘order of dominance’, and necessarily
‘reject other cultures’.36 While more work should certainly be done in replacing the
canon of the classics of international law, this book provides an attempt at relativ-
izing its foundations by drawing attention to its construction, and its value, as an
intellectual artefact.

33 Hayden White, ‘Historical Text as Literary Artifact’, in Hayden White, Tropics of Discourse: Essays

in Cultural Criticism (Johns Hopkins University Press 1986) 81, 82–​3. On legal imagination as an ac-
tivity of ‘bricolage’ (ie selection of persuasive and authoritative sources), see also Martti Koskenniemi,
To the Uttermost Parts of the Earth: Legal Imagination and International Power, 1300–​1870 (CUP
2021) 2–​4.
34 I follow here, although from a different perspective, Chakrabarty’s idea to challenge the ‘pol-

itics of historicism’: Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical
Difference (Princeton University Press 2008) 7–​11. I have addressed the question of ‘canon’ in greater
detail in Francesca Iurlaro, ‘Between Authority and (In)Authenticity: How Literary Canons Shaped
Ius Gentium’, Leiden Journal of International Law, forthcoming. Thanks are due to Claire Vergerio and
Paolo Amorosa for organizing the workshop ‘The Canon of Great Thinkers in International Legal and
Political Thought’ (Helsinki, 2–​3 November 2020), whose proceedings will be published as a special
issue of LJIL.
35 Edward Said, The World, the Text and the Critic (Harvard University Press 1983) 22, quoted in Jan

Gorak, The Making of the Modern Canon: Genesis and Crisis of a Literary Idea (Bloomsbury 2013) 187.
36 Ibid, 186.
16 Introduction

From this perspective, another aspect that this literary-​historical method has
generated is a critique of cultural relativism.37 Even when the belief-​system of clas-
sical virtues was progressively abandoned, in favour of a more pragmatic assess-
ment of customs, the fact that their normative foundation was taken for granted
produced a system of intra-​European rules that only theoretically recognized other
cultures, but concretely failed to integrate them into the European legal system and
historical vocabulary. Thus, cultural relativism came at a cost. Rather than pro-
viding a better foundation for a more inclusive customary ius gentium, it provided
an alibi for European cultural homogeneity to appear as the sole possible way for
custom to emerge as an international source of law. A certain comparative flavour
was present in the 16th century, where negative exemplarity of ‘otherness’ (pirates,
robbers, cannibals) coexisted with the attempt to find similarities with other cul-
tures. I will show an example of this, however problematic, aspect in discussing
Alberico Gentili’s focus on Christian–​Muslim relations and their respective cus-
toms of war. Starting from the late 17th century non-​European customs were de-
picted as exotic instances only to be quoted as counter-​examples that reinforced
the validity of European practices.

vi. Enters Venus: custom, authority, and civilization

This narrative of custom’s distinctively civilizing role is particularly well depicted

in Luca Ferrari’s 1650 painting Venus prevents Aeneas from killing Helen, featured
in the cover image of this book. The scene portrayed in the painting is based on
book II of Virgil’s Aeneid, in which Aeneas appears on the verge of killing Helen of
Troy.38 The artist’s masterful rendering of the dramatic tension perfectly depicts the
uncontrolled rage of Aeneas against the woman who was deemed to have caused
a devastating war, the deaths of many of his fellow Trojan citizens, and, eventu-
ally, the destruction of his homeland. Such tension is reflected in the bodies of the
characters. Aeneas’s right hand is squeezing a dagger, while his left one is violently
grabbing Helen’s vaporous turquoise gown; his veins are bursting with the desire
for vengeance. Helen is gently placing her hand on Aeneas’ arm in a vain attempt
to contain his fury. Yet, while Aeneas seems ready to strike his final blow, our atten-
tion is drawn to another overpowering force, a third character placed centre-​stage

37 This rupture calls into question the alleged continuity between the early modern period and

the Enlightenment. See Ann Thomson, Barbary and Enlightenment: European Attitudes towards
the Maghreb in the 18th Century (Brill 1987) 66; Marius Turda, Historicizing Race (Bloomsbury
2018); Charles Simon-​Aron, The Atlantic Slave Trade: Empire, Enlightenment and the Cult of the
Unthinking Negro (Edwin Mellen Press 2008); Ian Campbell, Renaissance Humanism and Ethnicity
before Race (Manchester University Press 2015); Daniel Carey and Lynn Festa (eds), The Postcolonial
Enlightenment: Eighteenth-​Century Colonialism and Postcolonial Theory (OUP 2009); Jonathan Burton
and Ania Loomba (eds), Race in Early Modern England: A Documentary Companion (Palgrave 2007).
38 Virgil, Aeneid II, 559–​623 (F Ahl, E Fantham eds, OUP 2007) 46.
 Introduction 17

in the painting: Aeneas’ mother Venus, the goddess of love. She appears from above
and firmly stops his son by pushing her hand on his chest to resist against his reso-
lution. Her energy is overwhelming. The rest of the story, as we know it from Virgil,
is that thanks to his mother’s intervention, and to the love and piety she inspired in
him, Aeneas eventually came to his senses and refrained from killing Helen.
Ferrari’s painting helps us visualize the two main arguments I use in the book
in response to the ‘problematic’ of custom. First, that custom is an invention, and
to understand it, we need to engage with a deconstruction of the cultural values
used to fabricate its legal meaning. We would not be able to understand Ferrari’s
painting without knowing about the symbolic relevance of Venus in European cul-
ture; nor could we understand why this episode from Virgil’s Aeneid was being
consistently quoted by authors of the ius gentium tradition as proof that it is a cus-
tomary rule to refrain from killing women during warfare. Values from classical
antiquity were turned into customary rules through a careful selection of literary
episodes, deemed of particularly paradigmatic importance. From this perspective,
the invention of custom was, for these jurists, an exercise in world-​making –​it was
what the jurist wanted to see in the world, not an accurate and reliable depiction of
how it actually was.
This leads to my second argument. Much like Venus’ intervention, custom is an
argument of authority often invoked by jurists, as the proverbial ex machina div-
inity of Greek tragedies, to curb the violence of sovereigns, and inspire them with
moderation. The symbolic force of Venus’ love reflects the way in which natural
law’s normative power is exploited by jurists to craft the customary rules to which
sovereigns should comply. But much like love, custom is hard, if not impossible, to
enforce. It is a belief, which relies on the fragile promise that we commit to its per-
formance daily, until it falls into desuetude.
 PART I
CUSTOM, C ON SC IE NC E , A ND
NAT U R A L L AW
 1
The Problematic of Custom in
Roman and Canon Law

1.1 Custom in Roman law

Roman writers used an array of different terms associated with the category of
‘custom’ (consuetudo). Some of these terms hint at the formal elements of custom,
such as the fact that it is an unwritten form of law (ius non scriptum),1 as well as
the result of social consensus among rational agents (consensus),2 or of a long pas-
sage of time (longa consuetudo);3 others emphasize custom’s inherent dependence
on some moral values, shared by and habitually performed by a community who
acknowledges their importance as the normative substratum of their social inter-
action (mos, mos maiorum).4 In this section, I offer an overview of the concept
of custom in the Roman and canon law tradition to introduce some problematic
aspects in the theorization of custom. While this section has no pretensions of
exhaustivity, as an accurate analysis of the Roman and medieval account of custom
would inevitably fall out of the scope of this book, it mainly aims to set the stage
for the early modern reprisal of the concept. Two aspects appear crucial for this

1 Cicero, Partitiones oratoriae (Divisions of Oratory) XXXVII, 130 (Loeb); Quintilian, Institutio

Oratoria, XII, 3.6 (Loeb). Against the identification between written and non-​written ius on the one
hand, and law and custom on the other, see Joseph Mélèze Modrzejewski, ‘La règle de droit dans l’Égypte
romaine (état des questions et perspectives de recerches)’, in Deborah H Samuel (ed), Proceedings of the
Twelfth International Congress of Papyrology (Hakkert 1970) 317, 320, quoted in Caroline Humfress,
‘Law and Custom Under Rome’, in Alice Rio (ed), Custom in the Middle Ages (Hellenic Studies Institute
2012) 26 (hereafter Humfress, ‘Law and Custom’). See also Francesco P Casalova, Ius ex scripto ex non
scripto (Editoriale Scientifica 2013).
2 On consensus bonorum as a basis for social and political harmony, and its relationship with ius gen-

tium, see Cicero Tusculanae Disputationes, I.30.8 (this passage will be closely analysed in Chapter 4);
also Cicero, De Inventione II.22.67 (Loeb): ‘quod voluntate omnium, sine leges vetusta comprobavit’;
on tacitus consensus, Gellius, Noctes atticae 11.18.4 (‘eius igitur leges . . . non decreto iusso, sed tacito
inlitteratoque Atheniensium consensu oblitteratae sunt’); 20.10.9 (‘institutum est contra duodecim
tabulas tacito consensu’) (Loeb); Pliny, Epistulae, 10.114.1.3; 10.115.1.4 (Loeb).
3 Quintilian, Institutio Oratoria, 2.5.2.2 (Loeb); Pliny, Epistulae, 10.115.1.4 (Loeb).
4 Arthur A Schiller, Roman Law: Mechanisms of Development (De Gruyter 1978) 258 (here-

after Schiller, Roman Law); Servius, Commentarius in Vergilii Aeneidem VII, 601; Lex Antonia de
Termessibus II.18–​22, in Allan C Johnson, Paul R Coleman-​Norton, and Frank C Bourne, Ancient
Roman Statutes (University of Texas Press 1961); Cicero, De Inventione II.22.67; on mos maiorum
see Max Kaser, ‘Mores maiorum und Gewohnheitsrecht’ (1939) 59 Zeitschrift der Savigny-​Stiftung
für Rechtsgechichte, Romanistiche Abteilung 52; Bernhard Linke and Michael Stemmler (eds), Mos
Maiorum: Untersuchungen zu den Formen der Identitätstiftung und Stabilisierung in der römischen
Republik (Steiner 2000).

The Invention of Custom. Francesca Iurlaro, Oxford University Press. © Francesca Iurlaro 2021.
DOI: 10.1093/​oso/​9780192897954.003.0002
22 Part I: Custom, Conscience, and Natural Law

reprisal: custom’s ability to navigate the dynamic between universal principles and
the necessities of local communities; and second, custom’s controversial relation-
ship with ius gentium.
Customary law is a relatively undertheorized legal category in pre-​Justinian
Roman law.5 In Schiller’s famous formulation, classical Roman law knew custom
(intended as a body of shared and widely accepted social norms, as witnessed by
the ancient notion of mores maiorum), but not customary law, that is, custom as an
independent source of law.6 By 212 CE, as nearly all inhabitants of the provinces
of empire are granted citizenship by the Constitutio Antoniniana, jurists are faced
with the necessity of interacting with other cultures and of integrating their tradi-
tions and practices within the Roman legal vocabulary.
Thus, a more substantive and distinctively legal-​theoretical interest in custom
as a source of law emerges, and custom becomes an important legal tool to tran-
sition those new necessities.7 Notably, Justinian’s Corpus Iuris Civilis provides us
with a recollection of some of the typical theoretical difficulties associated with
custom: long-​term custom is rightly to be considered as enacted law (lex), as it
was approved by the will of the people.8 Custom should be considered to have the
validity of law whenever written law seems unavailable,9 especially if it has been
observed for many years, because it is like a ‘tacita civium conventio’, a tacit com-
pact of citizens.10 Also, famously, the hermeneutic value of custom is acknow-
ledged (custom as optima legum interpretes).11 Justinian’s Corpus also addressed
the problem of custom and error. It might be that some customary practices are not
introduced according to some criterion of rationality but, rather, by mistake. If that

5 On consuetudo in Roman law, see Arthur A Schiller, ‘Custom in Classical Roman Law’ (1938)

24(3) Virginia Law Review 268; Schiller, Roman Law (n 4) 258; Olis Robleda, Introduzione allo studio
del diritto privato (2nd edn, Università Gregoriana Editrice 1979); Burkhard Schmiedel, Consuetudo
im klassischen und nach-​klassichen römischen Recht (H Böhlaus Nachf. 1966); Wolfgang Waldstein,
‘Gewohnheitsrecht und Juristenrecht in Rom’, in Manfred Harder and Georg Thielmann (eds), De
iustitia et iure, Festgabe Ulrich v. Lübtow zum 80. Geburtstag (Duncker & Humblot 1980) 105; Werner
Flume, Gewohnheitsrecht und römisches Recht (Westdeutscher Verlag 1975); Jean Gaudemet, ‘L’autorité
de la loi et de la coutume dans l’antiquité’, Rapports Generaux au VIe congress international de droit
comparé (E Bruylant 1962) 81.
6 Schiller, Roman Law (n 4) 562. See also David J Bederman, Custom as a Source of Law (CUP 2010)

17–​22 (hereafter Bederman, Custom as a Source) .

7 On Roman law as ius gentium, see Tony Honoré , Ulpian. Pioneer of Human Rights (2nd edn, OUP

2002) 24; Bederman, Custom as a Source (n 6) 18; the thesis whereby Roman law became Reichsrecht
with the enactment of the Constitutio is now disputed. See Alex Imrie, The Antonine Constitution. An
Edict for the Caracallan Empire (Brill 2018); also, José Luis Alonso, ‘The Constitutio Antoniniana and
Private Legal Practice in the Eastern Empire’, in Kimberly Czajkowski, Benedict Eckhardt, and Meret
Strothmann (eds), Law in the Roman Provinces (OUP 2020) 44.
8 Julian, D.1.3.32, Codex Iustinianus (P Kruger ed, Weidmann 1900).
9 Ulpian, D.1.3.33.
10 Hermogenianus, D.1.3.35. On consensus, see Paulina Swiecicka, ‘Il consensualismo della legge nel

pensiero dei giuristi romani del III secolo d.C. e nella riflessione dei giuristi contemporanei: paradosso
o necessità razionale?’ (2016) 5 Legal Roots 121.
11 Paulus, D.1.3.37.
 The Problematic of Custom in Roman and Canon Law 23

is the case, and such practice accidentally turns into a custom, the resulting custom
should not be applied to similar cases.12
In the late Roman Empire, as Humfress has shown, the legal language of custom
provided a useful means to grant local privileges and freedoms to the newly ac-
quired citizens of the empire, based on their existing traditions and customs.13
Local customs were often translated into provincial customs, provided they were in
accordance with Roman law.14 Their value was accepted as the expression of some
local consensus, in an attempt at maintaining order in the provinces and show-
casing imperial authority.15 These examples, however, exhibit a potentially prob-
lematic dichotomy between universalism and local customs. What mores should
prevail? Local, indigenous, and traditional customs, or the universal law of Rome?
This leads us to another important aspect, relevant to the scope of this book: the
relationship between custom and natural reason as an expression of ius gentium.
According to the famous definition in the Digest, ‘what natural reason has estab-
lished among all peoples, and that is observed between almost everybody, is called
ius gentium, which is the law that almost all the peoples use’ (my emphasis).16 This
formulation seems to imply that natural reason is both universal and can be used
in different contexts (a term which seems to hint at the fact that it relies on some
usus). From this perspective, ius gentium, as a form of ius non scriptum, seems to
qualify as a body of rules customarily used by different peoples of the world and
reflecting the dictates of natural reason.17 Whereas the idea of ius gentium as, to a
certain extent, customary already exists in Cicero,18 a theory of custom as a source
of ius gentium does not seem to be explicitly conceptualized in Justinian’s Corpus.

1.2 Custom in the Middle Ages

Concerns about the validity of custom persist in the Middle Ages. Custom plays
a crucial role in both civil and canon law, and constitutes the fundamental core
of ius commune, where the creative power of custom is often evoked for political

12 Celsus, D.1.3.39: ‘quod non ratione introdutum, sed errore primum, deinde consuetudine

optentum est, in aliis similibus non optinet’. On this, see Georg Klingenberg, ‘Ein Irrtum über eine
Lokale Consuetudo’, in Martin J Schermaier and Zoltán Vegh (eds), Ars Boni et Aequi. Festschrift für
W. Waldstein zum 65. Geburtstag (Franz Steiner 1993) 167–​75.
13 See Humfress, ‘Law and Custom’ (n 1) 27.
14 Soazick Kerneis, ‘Consuetudo Legis: Writing Down Customs in the Roman Empire (2nd–​ 5th
Century CE)’ (2016) 24 Rechtsgeschichte 244, 245, 248. See also Soazick Kerneis (ed), Une histoire
juridique de l’occident. Le droit et la coutume IIIe–​IXe siècle (Presses Universitaires de France 2018).
15 Humfress, ‘Law and Custom’ (n 1) 46–​7; see also a similar point, as far as recourse to customary

privileges in ius commune is concerned: Emanuele Conte, ‘Possedere l’uso. Profili oggettivi e soggettivi
della consuetudine nel diritto comune’, in Silvia Zorzetto (ed), La consuetudine giuridica. Teoria, storia,
ambiti disciplinari (ETS 2008) 41, 60 (hereafter Conte, ‘Possedere l’uso’).
16 D.1.1.9. See also Institutones I. 2.1; D.1.1.1.4.
17 Schiller, Roman Law (n 4) 255.
18 Cicero, Tusculanae Disputationes, I.30.8.
24 Part I: Custom, Conscience, and Natural Law

reasons.19 While acknowledging its value as an extremely ductile legal instru-

ment,20 medieval jurists seek to grasp the relevance of custom against the back-
ground of a clash of competing and equally universalistic authorities: the Church
and the Holy Roman Empire. At the same time, new local powers vindicate a pol-
itical space of influence and customary privileges for themselves against each of
these universal authorities.21 Worries about custom, however, do not merely refer
to its potential theoretical fallibility (as in Roman law), or to questions of polit-
ical legitimacy, but also reflect a distinctively moral preoccupation deriving from
Christian theology. In general, to test the validity of custom under Roman law it
was sufficient to put it in relation to the ratio of written law: from the Roman law
perspective, error was ‘just’ a legal problem and as such could be solved, either by
rectifying custom with apposite pieces of legislation, or by not applying it further to
similar cases, as suggested by Justinian’s Corpus.
Instead, in the Middle Ages natural law becomes the touchstone of the moral and
epistemic integrity of custom as a source of law. As expressed in the famous canon
law source Liber Extra,22 ascertaining such validity according to its compliance

19 I refer to Garré’s book for more bibliographical references: Roy Garré, Consuetudo. Das

Gewohnheitsrecht in der Rechtsquellen und Methodenlehre des späten ius commune in Italien, 16.-​18.
Jahrhundert (Klostermann 2005) (hereafter Garré, Consuetudo); on custom as a strategy to voice new
laws, see David Ibbetson, ‘Custom in Medieval Law’, in Amanda Perreau-​Saussine and James B Murphy
(eds), The Nature of Customary Law: Legal Historical and Philosophical Perspectives (CUP 2007) (here-
after Perreau-​Saussine and Murphy, The Nature of Customary Law) 155; Emanuele Conte, ‘Consuetudo,
Coutume, Gewohnheit, and Ius Commune. An Introduction’ 24 Rechtsgeschichte 234, 240; Peter Stein,
‘Custom in Roman and Medieval Civil Law’ (1995) 10(3) Continuity and Change 337. On ius commune,
here is a non-​exhaustive list of relevant titles: Francesco Calasso, Medioevo del diritto (Giuffrè 1954);
Paolo Grossi, L’ordine giuridico medievale (Laterza 1995); Hans-​Peter Haferkamp and Tilman Repgen
(eds), Usus modernus pandectarum: Römisches Recht, Deutsches Recht und Naturrecht in der Naturrecht
in der Frühen Neuzeit (Böhlau 2007); Helmut Coing, Ius commune (Klostermann 1979); Hermann
Lange, Römisches Recht im Mittelalter (CH Beck’sche Verlagsbuchhandlung 1997); John W Cairns and
Paul J du Plessis (eds), The Creation of the Ius Commune: From Casus to Regula (Edinburgh University
Press 2013); Manlio Bellomo, The Common Legal Past of Europe, 1000–​1800 (Catholic University of
America Press 1995); David Ibbetson, Common Law and ius commune (Selden Society 2001); Markus
D Dubbe and Christopher Tomlins (eds), The Oxford Handbook of European Legal History (OUP 2018).
20 Against this claim, Kadens has rather argued that 12th-​century commentators are responsible for

a pervasive misplacement of the analysis of the customary phenomenon, since they insisted on finding
a definition of custom by analogy with written law: ‘the modern publicists’ problems with custom grow
out of the efforts of the medieval jurists to fit custom into the hierarchy of law. . . This sort of law-
yerly bias has its origin in the 12th century, when the European tradition of formal legal study began.
But custom had a prelegal existence, and in this natural state it did not fit the mold of enacted law’.
Additionally, ‘natural custom was fluid, uncertain, equitable, and communitarian –​features of a system
of social regulation that lawyers no longer equate with law. Instead, for nearly 900 years, jurists and
judges have been trying to force custom to look like what they have been trained to believe law is, and
for nearly 900 years they have failed. Natural custom might, in certain circumstances, have functioned
as law, but it did not function like law.’ Emily Kadens, ‘Custom’s Past’, in Curtis A Bradley (ed), Custom’s
Future: International Law in a Changing World (CUP 2016) 11–​33.
21 On custom as privilege and as ‘subjective right’, see Conte, ‘Possedere l’uso’ (n 15) 23; John Hudson,

‘Introduction: Customs, Laws and the Interpretation of Medieval Law’, in Per Andersen and Mia
Münster-​Swendsen (eds), Custom: The Development and Use of a Legal Concept in the Middle Ages (Djøf
Forlag 2009) 1–​16.
22 Liber Extra 1.4.11: ‘consuetudo non derogat iuri naturali seu divino, cuius transgressio

peccatum inducit; nec positivo, nisi sit rationabilis et praescripta’. See Corpus Iuris Canonici, Pars
Secunda: Decretalium Collectiones Decretales Gregorii IX (Emil Ludwig Richter and Emil Friedberg eds,
 The Problematic of Custom in Roman and Canon Law 25

with natural law and divine law becomes crucial for both glossators and canon-
ists.23 The legitimacy of custom was being questioned by the fact that its very idea
seemed to run against Christ’s preaching: had he wanted men to take generally
accepted customs into account as a guide for their behaviours, a famous motto
among canonists goes, he would have said ‘ego sum consuetudo’ (‘I am custom’),
rather than ‘ego sum veritas’ (‘I am the truth’).24 In other words, custom seemed
to jeopardize the Church’s mission of truth and to introduce a potential disrup-
tion to the theological and moral order it sought to construct.25 In a time in which
the Church was muscularly aiming at asserting its political authority and consoli-
dating its legal structure through canon law,26 these problematic aspects of custom
were reconceptualized in order to provide a valuable means to secure the Church’s
sovereignty and jurisdiction.27
Canonists, therefore, developed some criteria for custom to legitimately act as a
source of law, so as to put its epistemic reliability (and compliance with natural law)
under scrutiny. Most notably, custom had to respond to two criteria: rationabilitas
(custom should comply with Church law, divine and natural law, and rational argu-
ments should be produced in favour of such compliance); and probabilitas (custom
should be the object of proof through reasonable arguments).28

Leipzig 1881). Digital version: <https://​www.hs-​augsb​urg.de/​~har​sch/​Chro​nolo​gia/​Lspos​t13/​Greg​

oriu​sIX/​gre_​0​000.html> accessed 23 March 2021.

23 See Jean Porter, ‘Custom, Ordinance and Natural Right in Gratian’s Decretum’, in Perreau-​Saussine

and Murphy, The Nature of Customary Law (n 19) 79; Joseph Canning, ‘The Medieval Roman and
Canon law Origins of International Law’, in William Bain (ed), Medieval Foundations of International
Relations (Routledge 2017) 102 (hereafter Canning, ‘The Medieval Roman and Canon Law’).
24 André Gouron, ‘Non dixit: Ego sum consuetudo’ (1988) 105 Zeitschrift der Savigny-​Stiftung für

Rechtsgeschichte (Kanonistische Abteilung) 133; on the medieval compilation called ‘Exceptiones Petri’,
and on the allegedly anti-​custom spirit that 19th-​century German scholarship has attributed to it, see
also Uta-​Renate Blumenthal, ‘The Revival of Roman Law: the Exceptiones Petri’ (2009) 21 The Haskins
Society Journal: Studies in Medieval History 113.
25 Arguably, Baldus de Ubaldis claimed that custom should be considered as truth, ‘consuetudo pro

veritate habetur’ (Baldus de Ubaldis, In primam digesti veteris partem commentaria (Iuntas 1577), 6).
26 See Clarence Gallagher, Canon Law and the Christian Community: The Role of Law in the Church

according to the Summa Aurea of Cardinal Hostiensis (Università Gregoriana Editrice 1978) 89, 94
(hereafter Gallagher, Canon Law); James A Brundage, Medieval Canon Law (Routledge 1995); Arturo
Rivera Damas, Pensamiento Politico de Hostiensis: studio juridico-​histórico sobre las relaciones entre el
Sacerdocio y el Imperio en los escritos de Enrique de Susa (Pas-​Verlag 1964).
27 Gallagher, Canon Law (n 26) 107; see also John A Watt, ‘The Use of the Term Plenitudo Potestatis by

Hostiensis’, in Stephan Kuttner and Joseph J Ryan (eds), Proceedings of the Second International Congress
of Medieval Canon Law (Congregatio de Seminariis et Studiorum Universitatibus 1963) 161, 170;
Brian Tierney, ‘Papal Political Theory in the Thirteenth Century’ (1965) 27 Medieval Studies 227; Brian
Tierney, Foundations of Conciliary Theory: the Contribution of the Medieval Canonists from Gratian to
the Great Schism (Brill 1998) 106; Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights,
Natural Law and Church Law 1150–​1625 (2nd edn, William B Eerdmans Publ. 2001); Gregory S Moule,
Corporate Jurisdiction, Academic Heresy, and Fraternal Correction at the University of Paris, 1200–​1400
(Brill 2016).
28 On rationabilitas see Garré, Consuetudo (n 19) 168–​ 74; Roy Garré, ‘The Dynamics of Law
Formation in Italian Legal Science during the Early Modern Period: The Function of Custom’, in Wim
Blockmans and others (eds), Empowering Interactions: Political Cultures and the Emergence of the State
in Europe 1300–​1900 (1st edn, Ashgate 2009) 91. On custom in canon law, Peter Landau, ‘Die Theorie
des Gewohnheitsrechts im katholischen und evangelischen Kirchenrecht des 19. und 20. Jahrhunderts’
26 Part I: Custom, Conscience, and Natural Law

For example, the famous canonist Cardinal Hostiensis claimed that custom
is ‘a certain law introduced by mores, that is accepted as law whenever the law
is missing’ –​a point taken by Gratian himself from Isidore de Seville’s famous
Etymologies.29 However, ‘reason has to be preferred to custom’, and whenever ra-
tionality is unclear it should be subject to scrutiny. On this specific point, Hostiensis
clarifies that ‘custom is a reasonable usage that has been prescribed and confirmed
for a suitable amount of time; it should not be interrupted by any contrary act’.30
Also, if custom was introduced by mistake, then it is not a proper custom (because
it was introduced against reason). Hostiensis accepts the possibility that there
might be a kind of custom, although erroneous, the application of which is not
to be extended to similar cases.31 Custom displays an automatic self-​invalidating
feature whenever it seems to result from an erroneous repetition of an unreason-
able act of the past. Such quality is due, according to Hostiensis, to the inherent
rationality of custom, in turn a result of its strong relation with virtue. As a matter
of fact, custom helps us imitate virtue. The normative quality of custom becomes,
thus, more explicit when compared to Roman law: the performative quality of ha-
bitus, and the repetition over time of the same reasonable action, makes it worthy
of praise and imitation by other social actors, provided custom was compliant with
natural and divine law in the first place. It is precisely for its inherent rationality
and virtuousness that custom can be used whenever enacted law is unavailable;
and it is also why its virtuous character extends to interpretation, and provides the
jurist with some helpful hermeneutic tools to argue for the correct interpretation of
the law through the lens of the customary habits of a community.
Whereas rationabilitas should be grounded in the virtuousness of the custom
in question, there is also the question of probabilitas: how to provide proof of such
normative value. ‘Some say it is impossible to prove it’, but Hostiensis suggests it is

(1991) 77 Zeitschrift der Savigny-​Stiftung für Rechtsgeschichte: Kanonistiche Abteilung 156; René Wehrlé,
De la Coutume dans le Droit Canonique, Essai historique s’étendant des origines de l’église au pontificat de
Pie XI (Librairie du recueil Sirey 1928) 279ff.

29 Stephen A Barney and others (eds), The Etymologies of Isidore of Seville (CUP 2006), 5.3, 117.
30 Cardinal Hostiensis (1210–​ 1271). His Summa Aurea was first published posthumously in
1473. Henrici Cardinalis Hostiensis Summa Aurea, Venetiis, apud haeredes Melchioris Sessae, 1570,
23: ‘quod sit consuetudo: ius quoddam moribus institutum, quod pro lege accipitur cum deficit
lex . . . Consuetudini autem est ratio praeponenda, nam sicut pro lege fit, probatio, ita per rationem.
Sed si utrunque deficiat, de similibus ad similia est procedendum . . . Consuetudo, est usus rationabilis
competenti tempore praescriptus vel firmatus, nullo actu contrario interruptus, binario actu, seu contra
dictorio iudicio non extet memoria, inductus communi utentium comprobatione’.
31 To prove his point, Hostiensis makes the amusing example of Burgus Panicalis, a small village close

to Bologna, where the wrong custom of delivering wine on a chariot started to take hold. Hostiensis
says that, erroneousness and impracticality of such usage notwithstanding, if the buyer spills the wine
by leaning against the chariot, the buyer (and not the vendor) is responsible for it. This does not apply
to other produce, like oil or honey, which are customarily delivered in a different way (so the customer
is not expected to know that a chariot might be full of oil or honey). This is a case of a self-​invalidating
custom, that is not applied to similar cases for reasons of its inherent wrongness and unreasonableness
(ibid, 24, §7).
 The Problematic of Custom in Roman and Canon Law 27

not.32 It requires, ‘as if it was a communal habit’, that the majority of the people ac-
tually practise that habit.33 Whereas a single man and minorities in general are in-
capable of introducing a new law, a majority can on the contrary convince a single
man (multi contra unum possent).34 This seems to introduce political consensus as
an epistemic criterion for custom: whereas the role of the majority in establishing
a custom was already acknowledged in Justinian’s Corpus, Hostiensis articulates
its evidentiary value more profusely. This value is justified not only by the power
of people in providing themselves with law, but with the social and moral pressure
that is engrained in communal living and constitutes a fundamental aspect of the
formation of custom and its subsequent identification. We shall come back to this
point when we address the question of habitus, a conceptual cognate of custom
that will be further explored by Aquinas, and reprised substantially by Vitoria
and Suárez. Hostiensis then acknowledges the existence of four types of custom,
depending on the width of their application: generalissima consuetudo is applied
between Catholics; generalis consuetudo only applies to a province; special custom
(specialis consuetudo) to a city or whatever place obtains it under special dispensa-
tion; and, finally, specialissima consuetudo is the custom of the pater familias.35
Alongside these debates, the global implications and instrumentality of which
in the creation of a Christian commonwealth are easily understandable,36 another
strand in the literature more explicitly situated the potential customary nature of
ius gentium in the context of a discussion on its origins. The famous Bartolus de
Sassoferrato claimed that there was a distinction between ius gentium based on
natural law (‘naturali ratione inductu, absque aliqua constitutione iuris gentium’),
and ius gentium secondarium based on custom –​which is ‘what all peoples use by
mutual arrangement (constitutio)’.37 Whereas here Bartolus talks about ‘constitutio’,
hinting at the political and thus positive nature of this second type of ius gentium,
elsewhere he more specifically talks about custom, calling it usus.38 Ius gentium is

32 Ibid.
33 Ibid.
34 Ibid, 23–​4: ‘inde consuetudo, quasi communis assuetudo . . . Requiritur ergo, quod maior pars po-

puli sic usa fuerit, quia sicut minor pars non potest condere legem, sic nec consuetudinem inducere,
secundum Joan. ex hoc videtur, quod unus solus non possit allegare consuetudinem, quamvis dicat, se
contra multo acquisivisse, licet multi contra unum possent’.
35 Ibid.
36 However, ius gentium in the medieval context should not be interpreted as ius inter gentes: Canning,

‘The Medieval Roman and Canon Law’ (n 23) 108; Dante Fedele, ‘Ius Gentium: The Metamorphoses of
a Legal Concept (Ancient Rome to Early Modern Europe)’, in Edward Cavanagh (ed), Empire and Legal
Thought: Ideas and Institutions from Antiquity to Modernity (Leiden 2020) 213.
37 Bartolus of Sassoferrato, In universum ius civile commentaria (Basel 1562) 640 (hereafter Bartolus

of Sassoferrato, In universum).
38 Although again a hint at the fact that ius gentium secondarium is being ‘used’ by its constituents is

present in this passage. See Diego Quaglioni, ‘La consuetudine come costituzione’, in Pietro Nervi (ed),
Dominii collettivi e autonomia, Atti della V riunione scientifica, Trento 11–​12 novembre 1999 (CEDAM
2000) 21.
28 Part I: Custom, Conscience, and Natural Law

made of two parts, one based on natural reason, and ‘another part, which derives
from the usage of peoples’ (alia pars, quae procedit ex usu gentium).39

1.3 Custom and empire: how natural law and ius gentium
became customary

These discussions are particularly revealing of how the intertwining between ius
gentium and custom are perceived, and continued strongly in doctrinal debates
in the early modern period.40 To face this problem, in early modern times, a dis-
cussion on the customary nature of ius gentium emerges in the context of a debate
concerning its dependence and possibility to derogate from natural law principles.
This qualifies a shift from customary rules as subjective rights or privileges, to be
politically negotiated between local and universal authorities, as in medieval ac-
counts, to custom as a universal rule of law applied to humankind. This precise nor-
mative choice was aimed at solving the problem of ‘otherness’ that emerged after
the discovery of the New World. As American indigenous people were deemed to
display a lack of rationality, capacity of self-​government, and, most importantly,
an invincible ignorance of Christ, it was urgent to understand what kind of rules
could be applied in encountering and conquering them.41 While not necessarily
thinking of custom as an independent source of law, but overlapping the concept
of custom with that of consensus, theologians like Vitoria thought of ius gentium
as partly made of natural law principles and partly of customs compliant with
European religious beliefs. Suárez, on the other hand, relying much more on the
canonist doctrine of generalissima consuetudo, while he seems to acknowledge the
customary nature of ius gentium, does not explicitly mention custom as a source
of the law of nations in general. Simply, that idea was not available to these theolo-
gians. Rather, they envisage a whole body of customary rules specifically regulating
relations among Christians, while considering non-​Christians subject to different
customary regimes. As we shall see, we shall have to wait until the 17th century
for a more explicit formulation of custom as a source of the law of nations. By
then, the relativization of ius gentium as a distinctively European science will have
made it possible for jurists to conceive of custom as an independent source of law.
When the question of how to deal with non-​European peoples is no longer essen-
tial to the definition of what ius gentium is, then it becomes possible for European

39 Bartolus of Sassoferrato, In universum (n 37) 13: ‘alia pars, quae procedit ex usu gentium, et tunc

habito respectu ad hanc partem, servus potest dici nullu, et hoc respectu non posset obligari’.
40 On the implications of debates on divisio iuris, see Annabel S Brett, Changes of State: Nature and

the Limits of the City in Early Modern Natural Law (Princeton University Press 2011) 75 (hereafter Brett,
Changes of State).
41 On this, see Daragh Grant, ‘Francisco de Vitoria and Alberico Gentili on the Juridical Status of

Native American Polities’ (2020) 72(3) Renaissance Quarterly 910.

Another random document with
no related content on Scribd:
 “There is always hope. Let us hope that in another state we shall
better know how to love and forgive one another. Here, we have a
poor understanding of this; but even here we can forgive. They will
not now forgive you; but you will leave them that which will make
them do so hereafter. Leave them your pardon.”
“O, Alice,—my daughter! Not if they murder Alice.”
“They shall not. I promise you——”
“But I did not expect this,” uttered the shivering prisoner. “I went to
bed——”
“Then collect yourself now. A few minutes’ resolution.—One effort
at calmness——”
“But is there no hope?”
“None whatever. Settle your mind to your fate. There is only
misery in struggling against it.”
“I will. I will. Only stay by me.”
“What a confidence for such a moment!” thought Charles, as he
saw the tractable expression which the countenance assumed. It
was some comfort, however, that there was any confidence which
could give decency to his dying deportment.
The people around grew impatient. The executioner lifted his
sword. The victim looked up at it, half fearfully, half meekly, like a
penitent child at the impending rod. He fell, without a sign or a cry;
and at the moment, the flames burst forth from the lower windows,
as if to lick up, in as summary a vengeance as they had been guilty
of, the perpetrators of this murder. All rushed from the terrace, with a
yell of consternation, leaving the body alone, its unclosed eyes
shining in the glare, as if gazing unmoved on that violence which
could no longer reach it in the shape of injury.—When the gust fell,
and the flames retired some space, the ruffian who held the sword
returned to the place of execution, severed the head, tossed the
body into the flames, and returned with his trophy to the cheering
mob.
There was nothing for Charles and Antoine to stay for. They could
neither save property, nor prevent crime. There was no purpose to
be answered by an attempt to do the first; for the lady Alice could
never return hither, or probably find any corner of her native land in
which to dwell in peace. Any endeavour to check the people’s rage
would only have brought on more murders. It was better that they
should occupy themselves with destroying inanimate things than
have their wrath directed upon human objects. The brothers
therefore left them endeavouring to discover the treasure-chamber,
and paced silently homewards, trying whether, after such a spectacle
as this, their hopefulness could get the better of their heart-sickness.
 Chapter IX.

ADJUSTMENT.

Marguerite began to think that she and her family had better have
staid in Paris, since violence as foul as any there, with less chance
of redress, took place in the country. But as there were fewer marked
for destruction in a thinly peopled than in a crowded district, the work
of horror was sooner over; and within a few weeks, all was quiet
around her dwelling. No judicial inquiry whatever was made into the
fate of the marquis; and night after night, ominous gleams were seen
from afar, marking where life and property were being offered up in
expiation of former tyranny. When every neighbouring chateau that
was empty had been sealed up and guarded by the people from
being entered by its owners; and when every inhabited one had
been dismantled or converted into a pile of blackened ruins, there
was a truce. The gentry sighed over the abolition of feudalism; the
peasantry gloried in the destruction of the aristocracy; and both,
looking no farther than their own borders, supposed that all was
over, and the state of the country,—miserable as it was,—settled.
Charles and his brother knew too well what was passing in Paris
to acquiesce in this belief; but they were glad of the good effects it
seemed to produce in quieting the minds, and therefore fixing the
outward circumstances of their neighbours. People went about their
regular business once more, prices grew steady in the markets, and
the mysterious, dishonest sort of bargaining which had gone on
immediately after the destruction of the chateaux, was seen no
more. No golden timepieces now passed from hand to hand, in
exchange for the coarsest articles of clothing or furniture; and if
polished tables, or morsels of curious old china were seen here and
there in the hovels of half-starved peasants, they were not put up for
sale, and did not answer the purpose of further perplexing the values
of things. Seeing that Marguerite began to feel pretty much at her
ease once more, going to rest without presentiments of being roused
by fire, and venturing, with only the children, to transact her
necessary purchases among the peasantry, Charles began to try
whether he could make anything of his business at Paris; and set
out, in order that he might be on the spot to take advantage of the
first symptoms of tranquillity to meet the demand which would then
certainly arise.
He went to Paris before winter was quite over; and found more
promise of a settlement of public affairs than at any time since the
commencement of the revolution. Yet he would not hear of his family
joining him, till it should be known whether or not king, parliament,
and people would cordially agree in the new constitution which was
then in preparation. When there was not only a promise of this, but
all arts and artificers were actually put in requisition to render the
spectacle of taking the oath as magnificent as the occasion required,
there was no further pretence for Charles’s prudence to interfere with
the hopefulness which now seemed rational enough. He sent a
summons to Marguerite to return and witness the festival from which
her loyalty and his patriotism might derive equal gratification. But
Marguerite was detained in the country by her father’s illness,—his
last; and the children were deprived of the power of saying
afterwards that they had witnessed in Paris the transactions of that
day which was regarded at the time as the most remarkable in the
annals of France.
That day, the 14th of July, 1790, was appointed to be a high
festival throughout the kingdom: Charles passed it in the Champ de
Mars; Marguerite by the dying bed of her father; the children, under
the guardianship of their uncle Antoine, among the rejoicing
peasantry; and Steele, who had returned to Bordeaux when Charles
settled himself again in Paris, took the opportunity of visiting La
Haute Favorite for the first time after so many vicissitudes.
It seemed to them all a strange,—to the superstitious among them,
an ominous circumstance that they should be thus separated on the
occasion when all were called upon to recognize the social
agreement under which they and their successors were to live.
A gleam of the afternoon sun shone in upon the face of
Marguerite’s father as he dozed, and made him turn restlessly on his
couch. His daughter hastened to shut it out, and the movement
awoke him.
“One is fit only for the grave,” he said, “when the light which shines
on all above it becomes painful.”
“Father! you are better,” said Marguerite, turning round astonished.
“No,” said he, faintly, “not better. I cannot bear this light,—or this
heat,—or—but no matter; it will presently be over. But where is
Charles?”
“He will be here very soon; but it is only two days since you
became worse; and there has been no time for him to come yet. To-
day he is waiting upon the king, and next he will wait on you.”
“On the king!” and the old man was roused at once. “And all the
people? I fancied they had left off their duty. Who waits upon the
king?”
“The whole nation,” Marguerite replied, sighing to herself,
however, over her own view of the matter—that the king was, in fact,
waiting upon the nation. She proceeded to tell what was doing in
Paris, and remarked that she hoped they had finer weather there
than here, where it had been a day of continued rain, till the gleam
came which had wakened her father.
M. Raucourt was too ignorant of the events of the last two years to
be able to comprehend the present proceeding. He could not see
what the people had to do with the constitution; but laid the blame on
his own weak brain, when assured that the loyal men of France were
all consenting to the measure. Other tokens of ignorance were much
more affecting to his daughter. He wished to be raised in bed, so that
he might see his olive woods in the evening glow. They were no
longer there, and his attention must be diverted to something else.
He wished to behold the marquis de Thou passing the house for his
daily ride.—The bones of him he asked for were mouldering under
the ruins of his own abode.—“At least,” said M. Raucourt, “let me be
carried to the window, that I may see the chateau. It looks so finely
on the terrace! and it is so long since I saw it!”—Grass was growing
on its hearths, and the peasants’ children were playing hide and
seek among its roofless halls.
“You have not asked for the children,” said Marguerite. “If you are
so strong this afternoon, perhaps you can bear to speak to them.”
And they were sent for, and presently made their appearance from
the river-side, full of what they had been seeing and doing. They told
how one cannon was fired when the hour struck at which the royal
procession was to set out, and another when the whole array was to
be formed in the Champ de Mars, and others to represent the taking
of the oath by the king, by the representatives of the parliament, and
by Lafayette in the name of the people.
“And what is all this for?” asked the old man. “It is a beautiful
spectacle, no doubt; but there were no such things in my time as the
king and the people swearing at the same altar.”
“The people make the king swear, and some of them do not think
he likes it,”—observed Julien, unmindful of his mother’s signs.
Pauline went on,
“No more than he liked being brought prisoner from Versailles, and
having his guards’ heads cut off.”
The little girl was terrified at the effect of her words. She in vain
attempted to make up for them by saying that the king and queen
were very well now; and that the people did not expect to be starved
any more, and that everybody was to be very happy after this day.
The loyal old man said he should never be happy any more; and
groaned and wept himself into a state of exhaustion from which he
did not revive, though he lived two or three days longer.
“I wish,—I wish—” sobbed poor Pauline, “that the people had
never meddled with the king——”
“Or the king with the people,” said Julien, “for that was the
beginning of it all.”
“I am sure so do I,” said Marguerite, sighing. “It is little comfort to
say, as Antoine does, that the world cannot roll on without crushing
somebody.”
“If that somebody puts himself in the way, uncle said,” observed
Julien.
“Everybody has been in the way, I think, my dear. All France is
crushed.”
 “Not quite, mamma. Uncle Antoine and Mr. Steele are sitting
between the two big vines, and they say that everybody will be
buying wine now that buying and selling are going to begin again.”
It was very true that the young men were enjoying their favourite
retreat to the utmost; gilding it with the sunshine of their
expectations, and making it as musical with the voice of hope as with
the gay songs which were wafted from the revellers below.
They were not a little pleased when their anticipations were
countenanced by a letter from Charles which reached his wife on the
day of her father’s death, and was not the less in accordance with
her feelings for having been written before tidings of the old man’s
illness had reached Paris, and being, as usual, hopeful and happy.
“I have written to Antoine,” he said, “to urge all care in the
approaching vintage, and all dispatch in the management of our
immediate business. Good days are coming at last, unless
despotism should bring on itself a new punishment, and rouse once
more the spirit of faction, which has been laid to rest this day by that
powerful spell, the voice of a united nation. It would astonish you to
see how commercial confidence has already revived; and, as a
consequence, how the values of all things are becoming fixed; and,
again, as a consequence of this, how the intercourses of society are
facilitated, and its peace promoted. It was the perception and
anticipation of this which to me constituted the chief pleasure of the
magnificent solemnity of this day. It was a grand thing to behold the
national altar in the midst of an amphitheatre filled with countless
thousands; but it was a grander to remember that these thousands
were only the representatives of multitudes more who were on tiptoe
on all our hills, in all our valleys, watching and listening for the token
that they may trust one another once more, and exchange, for their
mutual good, the fruits of their toil. It was touching to see the
battalion of children,—‘the hope of the nation,’—coming forward to
remind the state that it sways the fate of a future age; but it was
more touching to think of our own little ones, and to believe that, by
the present act, the reward of the social virtues we try to teach them
is secured to them.—It was imposing to see one golden flood of light
gush from a parting cloud, giving an aspect of blessing to what had
before been stormy; but it was as an analogy that it struck us all, and
impelled us to send up a shout like the homage of worshippers of the
sun. Has not a light broken through the dreariness of our political
tempests? There maybe,—let us hope there will be, from this day,
order in the elements of our social state. Let but all preserve the faith
they have sworn, and there will be no more sporting with life and
property, no absurd playing with baubles while there is a craving for
bread, no ruin to the industrious, and sudden wealth to such as
speculate on national distress. We may once more estimate the
labour of our peasantry, and the value of our own resources, and fix
and receive the due reward of each. We may reach that high point of
national prosperity in which the ascertainment and due recompense
of industry involve each other; when the values of things become
calculable, and mutual confidence has a solid basis.—I do not say
that this prosperity will come, but I hope it will; and if all others have
the same hope, it certainly will. It may be that the sovereign will lose
his confidence, and go back. It may be that the parliament or the
people will do the same; and then may follow worse miseries than
we have yet known. But if they see how much social confidence has
to do with social prosperity, they will refuse to disturb the tranquillity
which has been this day established.
“And now, however you may sigh or smile a the spirit of hope
which is in me and Antoine, what say you to it in the case of a
nation? Are not its commercial exchanges a most important branch
of its intercourses? Must not those exchanges be regulated by some
principle of value, instead of being the sport of caprice? Is not that
principle the due and equable recompense of labour, or (in business-
like terms) the cost of production? Is not this recompense secured by
the natural workings of interests—and can these interests work
naturally without an anticipation of recompense—that is, without
hope, inspiring confidence? Depend upon it, hope is not only the
indispensable stimulus of individual action, but the elastic pressure
by which society is surrounded and held together. Great is the crime
of those who injure it; and especially heinous will be the first trespass
on public confidence of any who have been in the Champ de Mars
this day. As that which is national springs from that which is
individual, I will add that Antoine and Steele are patriotic if they exult
in the ripening beauties of Favorite; and if you would be patriotic too,
gladden yourself with the promise of our children, and tell me, when
we meet, that you trust with me that all will be well both with our
wines and our politics.”
 Summary of Principles illustrated in this Volume.

There are two kinds of Value: value in use, and value in exchange.
Articles of the greatest value in use may have none in exchange;
as they may be enjoyed without labour; and it is labour which confers
Exchangeable Value.
This is not the less true for capital as well as labour being
employed in production; for capital is hoarded labour.
When equal quantities of any two articles require an equal amount
of labour to produce them, they exchange exactly against one
another. If one requires more labour than the other, a smaller
quantity of the one exchanges against a larger quantity of the other.
If it were otherwise, no one would bestow a larger quantity of
labour for a less return; and the article requiring the most labour
would cease to be produced.
Exchangeable value, therefore, naturally depends on cost of
production.
Naturally, but not universally; for there are influences which cause
temporary variations in exchangeable value.
These are, whatever circumstances affect demand and supply.
But these can act only temporarily; because the demand of any
procurable article creates supply; and the factitious value conferred
by scarcity soon has an end.
When this end has arrived, cost of production again determines
exchangeable value.
Its doing so may, therefore, stand as a general rule.
Though labour, immediate and hoarded, is the regulator, it is not
the measure of exchangeable value: for the sufficient reason, that
labour itself is perpetually varying in quality and quantity, from there
being no fixed proportion between immediate and hoarded labour.
Since labour, the primary regulator, cannot serve as a measure of
exchangeable value, none of the products of labour can serve as
such a measure.
There is, therefore, no measure of exchangeable value.
Such a measure is not needed; as a due regulation of the supply
of labour, and the allowance of free scope to the principle of
competition ensure sufficient stability of exchangeable value for all
practical purposes.
In these requisites are included security of property, and freedom
of exchange, to which political tranquillity and legislative impartiality
are essential.
Price is the exponent of exchangeable value.
 Transcriber’s Note
Words hyphenated on line or page breaks have the
hyphen removed if the preponderance of other
occurences are unhyphenated. Hyphens occuring
midline are retained regardless of other unhyphenated
occurences (step-mother/stepmother, straight-
forward/straightforward, life-time/lifetime, work-
house/workhouse, fish-women/fishwomen, door-
way/doorway).
At line 12 of page 27 in “For Each and For All”, there is
an opening double quote which seems superfluous. The
author’s intent not being clear, it has been retained.
Other errors deemed most likely to be the printer’s
have been corrected, and are noted here. The
references are to the page and line in the original. Given
the independent pagination of the original, these are
divided by volume.
Homes Abroad.

11.13 and immedi[di]ately Removed.

placed
12.21 and get no bread?[’/”] Replaced.
19.29 to save them yet.[’/”] Replaced.
20.20 the happiness of the Added.
people[.]
31.4 is the price of food?[’/”] Replaced.
45.32 prosperity of John Lawe, Replaced.
Esq.[’/”]
38.18 [“]You had need take care Restored.
47.8 on a fool’s errand.[”] Added.
48.29 pleased [ta/at] the Transposed.
appearance
52.31 who had settled among Added.
them[.]
55.28 [y/h]ence arise Transposed.
discontents
55.29 [h/y]ears years of his new Transposed.
life
57.33 [rdbo/bord]ering upon it Transposed.
62.26 any thing about them.[’/”] Replaced.
67.24 [‘/“]She will do Replaced.
87.21 a gang of bush[ /-]rangers Added.
116.19 It was not Ellen[ /’]s wish Restored.
125.1 of her colonies[.] Added.
125.13 can be had Transposed.
el[es/se]where.

For Each and For All.

38.13 from a deficiency of Restored.

[g]ood
96.1 to convey him a[u/n]d his Inverted.
securities

French Wines and Politics.

21.34 [e]verybody else Restored.

64.7 and to recal[l] the Added.
servants
68.2 downfal[l] of their Added.
despotic sway
80.27 as there wo[n/u]ld be Inverted.
81.7 A[u/n]d a low Inverted.
exchangeable value
98.1 your literal Replaced.
depend[a/e]nce on them
 *** END OF THE PROJECT GUTENBERG EBOOK
ILLUSTRATIONS OF POLITICAL ECONOMY, VOLUME 4 (OF 9) ***

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