The concept of customary international law, although differently formulated, is already present in early modern European debates on natural law and the law of nations. However, no scholarly monograph has, until now, addressed the relationship between custom and the European natural law and ius gentium tradition. This book tells that neglected story, and offers a solid conceptual framework to contextualize 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. This normative content consists of a set of fundamental moral values that help identify the status of custom as either a fundamental feature or an original source of ius gentium. This book explores what cultural values and practices facilitated the emergence of custom and rendered it into as a source of the law of nations, and how they did so. Two crucial issues form the core of the book's analysis. Firstly, it qualifies the nature of the interrelation between natural law and ius gentium, explaining why it matters in relation to our understanding of the idea of custom. Second, the book claims that the process of custom 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'.
Author(s): Francesca Iurlaro
Series: The History and Theory of International Law
Publisher: Oxford University Press
Year: 2021
Language: English
Pages: 304
City: Oxford
Cover
Series
The Invention of Custom
Copyright
Contents
Introduction: the ‘Problematic’ of Custom in the Natural Law and ius gentium Tradition
i. The problematic of custom
ii. Custom and natural law
iii. Custom and history
iv. Ius gentium as customary vs. custom as a source of the law of nations
v. Methodology: custom as historiographic practice
vi. Enters Venus: custom, authority, and civilization
1. The Problematic of Custom in Roman and Canon Law
1.1 Custom in Roman law
1.2 Custom in the Middle Ages
1.3 Custom and empire: how natural law and ius gentium became customary
1.4 Possession, prescription, custom: the problem of time
1.5 Local customs and universalizing the native past: law and historiography as imperial projects
1.6 Custom as a case of conscience: natural law, moral persuasion, and the power of confession
2. ‘Like Beginners in Arabic’. Custom and Reason in Francisco de Vitoria’s Doctrine of ius gentium
2.1 A clarification on Vitoria’s texts
2.2 Vitoria reads Aquinas (1): on reason and consensus
2.3 Vitoria reads Aquinas (2): on natural law and habitus
2.4 Consensual ius gentium: a counterfactual proof
2.5 A custom under the law of nations: slavery in Vitoria, de Soto, and Báñez
3. Obligation through Agreement, Agreement on Obligation: Ius gentium as custom in Francisco Suárez
3.1 Conscience and habitus: custom in Suárez
3.2 Is the ‘international’ community perfect? Ius gentium as custom, and its source of obligation
3.3 The naturalism of habitus and the self-legitimizing role of the will
3.4 How to do things with custom: ius gentium and change
4. Custom as Historiography: Alberico Gentili
4.1 Custom and the historical exemplarity of humanism
4.2 Historiographic pragmatism and ‘the others’: Alberico Gentili on custom
4.3 Gentili’s ius gentium: justice, empire, and humanitas
4.4 Gentili’s custom
5. A Literary History of Custom: Hugo Grotius
5.1 Consuetudo, mos, consensus: custom as a distinctive feature of the law of nations
5.2 Grotius, Dio Chrysostom, and the ‘invention’ of custom
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
6. A Turn Inward: the Europeanization of Customary ius gentium
6.1 Custom as a social construct: reputation, official historiography, and the birth of state practice
6.2 Custom, love, and perfection: the problem of obligation
6.3 Against stylistic dryness: how custom freed itself from antiquity
7. Custom in Concentric Circles: Samuel Pufendorf’s Customary ius gentium Between Glory and State Interests
7.1 Pufendorf’s main conceptual innovations
7.2 Natural law as the science of morality
7.3 Law of nations in times of peace: international agreements and reason of state
7.4 The problem of consensus: Pufendorf’s method
7.5 Law of nations in times of war: customary ius gentium and social reputation
8. Christian Wolff and His ius gentium consuetudinarium
8.1 Wolff’s philosophization of customary ius gentium
8.2 Wolff’s system: the psychological foundations of natural law
8.2.1 Consensus
8.2.2 Perfectio
8.2.3 Concursus
8.3 Laws of nature, natural law, and ius gentium: the perfection of civitas maxima
8.4 The parody of ius gentium consuetudinarium: between philosophy and history
9. Vattel’s Doctrine of the Customary Law of Nations
9.1 Vattel’s custom between sovereign interests and the principles of natural law
9.2 Vattel vs Wolff: self-interest as the foundational principle of natural law
9.3 Distinguished, yet not treated separately: the natural and positive law of nations
9.4 Customary law of nations: between facts and principles
9.5 Facts with meaning: customs originating in an overlapping of practice and principles
9.6 ‘Non-indifferent’ customs
9.7 Is the violation of custom punishable?
Conclusion
i. Custom after natural law? Revivals, ruptures, and reflections
ii. ‘After’ natural law?
iii. An exercise in (dis)belief: custom and historical methodology
Appendix
Bibliography
Index
