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2 - The evolution of international law

Published online by Cambridge University Press:  05 June 2012

David Armstrong
Affiliation:
University of Exeter
Theo Farrell
Affiliation:
King's College London
Hélène Lambert
Affiliation:
Brunel University
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Summary

Historians of international law differ over Montesquieu's observation in the Spirit of Laws that ‘all countries have a law of nations, not excepting the Iroquois themselves, though they devour their prisoners: for they send and receive ambassadors, and understand the rights of war and peace’. One school of thought argues in opposition to Montesquieu that international law is essentially a European invention, although there are different emphases within this school as to whether international law commences with the ancient Greeks, with the Romans, with medieval Christendom, with early modernity, or with the Peace of Westphalia in 1648. Others, who object to the Eurocentrism implicit or explicit in such views, assert that a truly universal system of international law is not apparent until the late nineteenth century. Yet another thesis, with the same starting point of resisting Eurocentric interpretations, maintains that there was a universal international legal order roughly from the rise of Islam until the late eighteenth century, but the nineteenth-century doctrine of sovereignty and legal positivism, together with European imperialism, involved a shift away from the broad moral principles of natural law that underpinned the universal order towards a self-serving distinction between ‘civilised’ states, which could have legal obligations towards each other, and the rest, who were outside the legal system. Additional complications are to be found in claims that the true origins of international law are to be found in the ancient Middle East, or China, or India.

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Publisher: Cambridge University Press
Print publication year: 2007

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References

Alexandrowicz, C. H., An Introduction to the History of the Law of Nations in the East Indies, London: Oxford University Press, 1967. Alexandrowicz was, for years, almost the only Western writer attempting to shift international law away from its Eurocentric assumptions by showing how European states derived international legal principles from the Asian states during the period up to the nineteenth century (i.e. when they dealt with such states on a basis of relative equality).Google Scholar
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