Lessons from Law
The modern system of international law is a product, roughly speaking of only the last four hundred years. It grew to some extent out of the usages and practices of modern European states in their intercourse and communications while it will bears witness to the influence of writers and jurists of the sixteenth seventeenth, and eighteenth centuries, who first formulated some of its most fundamental tenets. Moreover, it remains tinged with concepts such as national and territorial sovereignty, and the perfect equality and independence of states, that owe their force to political theories underlying the modern European state system, although, curiously enough, some of these concepts have commanded the support of newly emerged non
– European states.
But any historical account of the system must begin with earliest times, for even in the period of antiquity rules of conduct to regulate the relations between independent communities were felt necessary and emerged from the usages observed by these communities in their mutual relations. Treaties, the immunities of ambassadors, and certain laws and usages of war are to be found many centuries before the dawn of Christianity, for example in ancient Egypt and India, while there were historical cases of recourse to arbitration and mediation in ancient China and in the early Islamic world, although it would be wrong to regard these early instances as representing any serious contribution towards the evolution of the modern system of international law.
We find, for example, in the period of the Greek City States, small but independent of one another, evidence of an embryonic, although regionally limited, form of international law which one authority – Professor Vinogradoff aptly described as ‘Inter municipal’. This ‘inter municipal’ law was composed of customary rules which had crystallised into law from long – standing usages followed by these cities such as , for instance , the rules as to the inviolability of heralds in battle , the need for a prior declaration of war , and the enslavement of prisoners of war . These rules were applied not only in the relations inter se of these sovereign Greek cities , but as between them and neighbouring states Underlying the rules there were , however, deep religious influences, characteristic of an era in which the distinctions between law, morality, justice and religion were not sharply drawn .
In the period of Rome’s dominance of the ancient world, there also emerged rules governing the relations between Rome and the various nations or peoples with which it had contact. One significant aspect of these rules was their legal character, thus contrasting with the religious nature of the customary rules observed by the Greek City States. But Rome’s main contribution to the development of international law was less through these rules than through the indirect influence of Roman law generally, inasmuch as when the study of Roma law was revived at a later stage in Europe, it provided analogies and principles capable of ready adaptation to the regulation of relations between modern states.
Actually, the total direct contribution of the Greeks and Romans to the development of international law was relatively meagre. Conditions favourable to the growth of a modern law of nations did not really come into being until the fifteenth century, when in Europe there began to evolve a number of independent civilised states. Before that time Europe had passed through various stages in which either conditions were so chaotic as to make impossible any ordered rules of conduct between nations, or the political circumstances were such that there was no necessity for a code of international law. Thus in the later period of Roman history with the authority of the Roman Empire extending over the whole civilised world, there were no independent states in any sense era, there were two matters particularly which militated against the evolution of a system of international law: the temporal and spiritual unity of the greater part of Europe under the Holy Roman Empire, although to some extent this unity was notional and behind by numerous instances of conflict and disharmony; and the feudal structure of Western Europe , hinging on a hierarchy of authority which not only clogged the emergence of independent states but also prevented the powers of the time from acquiring the unitary character and authority of modern sovereign states.
Author is Senior lecturer at KCEF Law College Pulwama