Sunday, February 25, 2007

Lesaffer on Roman Law and the Early Historiography of International Law

Randall C.H. Lesaffer, Tillburg University, has posted a new paper on SSRN, Roman Law and the Early Historiography of International Law: Ward, Wheaton, Hosack and Walker. Here's the abstract:
The significance of Roman law for the evolution of international law is an issue as complex as it is contentious. It has two main dimensions: the continuity between Roman 'international law' and that of later times and the impact of Roman private law on the further development of international law. As several legal historians and international lawyers of the 20th century - among whom Hersch Lauterpacht is foremost - have indicated, this historical debate is overshadowed by concerns about current international law.
In this article, the works of four Anglo-American historians of international law from the 19th century are analysed in relation to Roman law. These early historians of international law all viewed the question of the Roman contribution to modern international law in terms of their understanding of that law. As was the case during the 20th century, and as Lauterpacht had claimed, the discussion on Roman law reflected the great debate between positivists and naturalists. Of course, each waged the debate in the terms of his day and age. None of these authors reduced international law to the positive public international law of the 19th century, based upon the sovereign state. None of them was over-concerned with consensualism and voluntarism, at least not directly. The central issue was the other one Lauterpacht had forwarded: the question whether States were subjected to the same morals and laws as individuals.