Lesson 2: Schools of International Law 2️⃣

Origins of the Idea of International Law

a. Idea first appears in the Renaissance world.

b. Renaissance writers drew upon concepts developed in the ancient and medieval worlds.

Roman sources:

1. Jus civile ("the civil law")

was the law that regulated Roman citizens.

2. Jus gentium ("the law of nations"),

applied to affairs among non-Romans as well as to dealings between Romans and non-Romans.

Jus naturale:

(natural law) classical Greek and Roman conception of law.

Cicero

According to __________
1] It is universal and immutable.

2] It is a higher law than the law created by political authorities.

3] It is discoverable by reason.

Medieval sources:

Thomas Aquinas (1225-1274),

a) a Christian philosopher and saint, kept the notion of natural law alive through the middle ages.

b) He believed that it was a principle that was common to all peoples--adding that divine law revealed in scriptures gave Christians an additional guide for their actions.

The Naturalist School

Renaissance Developments

Francisco de Vitoria (1486-1546) and Francisco Suarez (1548-1617)

• Spanish theologians, were concerned with the legality of Spain's conquest of America and the justness of its subjugation of American native peoples.

• Regarded natural law as the transcendental source of international law.

• Argued that international law could be derived from:

  • an idealized (that is, simplified) conception of a "community" of states, and

  • from both right reasoning and revelation.

John Locke (1632-1704),

English naturalist philosopher, argued that governments are organized to protect the life, liberty and property of individuals.

International law (according to the Naturalist School)

1] Superior to the law of the individual states, and

2] Normative (i.e., it sets the standard by which all states must govern their affairs), because it is ultimately derived from nature which, in turn, is a divine creation.

Recent developments:

Naturalism

Natural Law

_________fell out of favor in the nineteenth century, but it has seen a modest revival in the twentieth.

_________ideals were relied on in drafting the UN Declaration of Human Rights.

Positivist School

Beginning in the 17th century, writers challenged the divine aspects of natural law.

1) Richard Zouche (1590-1690), an English jurist, and Cornelius van Bynkershoek (1673-1743), a Dutch judge

• argued that states only had to obey international law if they consented to it.

2) George Hegel (1770-1831)

• added the idea that states, like individuals, have independent wills.

Positivists view law

___________as being created by governmental authorities, and international law as being created by independent states

acting together to make treaties and to establish customary practices.

consent and consensus:

Pros and cons of positivist view that international law is made by __________ and____________

Pro: it makes the substance (the rules and the procedures) of that law easier to identify.

Con: it ignores and destroys international law's normative and obligatory characteristics.

• Unlike naturalism, it allows a state the option of expressly repudiating its international duties.

1. Eclectic School

2. Hugo Gratius

1.___________contend that certain international rights and duties of states are inherent (from natural law) while the duty to observe them is voluntary (from positivist law).

Members of this school are known as "Grotians" after their most famous member: 2. _________ (1583-1645), a Dutch lawyer.

b. Criticism: this conception of international law can too easily be used by states as a basis for asserting rights while ignoring duties. Such a philosophy, it is said, "is a sure recipe for disorder."

The social and economic sciences.

Basis of the Modern Schools

1.The Sociological School

2.Léon Dugit and Max Huber

1.___________International law is a social artifact.

A reflection of the power structure, behavior patterns, and cohesiveness of the groups that

make up "international society."

b. Founders: 2.________ (1859-1928), French law professor, and _________ (1874-1960), Swiss jurist

The Communist or Economic Determinist School

a. Law is the formalized means by which the economically dominant (or ruling) class controls society.

b. International law:

1) Applies only to states.

a) Reason: law itself is an attribute of the state.

2) Is consensual.

a) Reason: a true communist society does not need law, so law can only exist for a communist state if it gives its consent.

b) Limitation: once a state