Founding Myths

Author: Sué González Hauck

Required knowledge: Link

Learning objectives: Understanding and contextualizing the debates on the origins of international law, particularly regarding the figures of Hugo Grotius and Francisco de Vitoria and the Peace of Westphalia.

A. Of Fathers and Birth Certificates: The Founding Myths and International Law's Institutional Anxiety

International law as a discipline is famously riddled with its fair share of anxiety. "Does international law even exist?", "Does it matter?" "Is it really law?" and, perhaps most importantly, "Are we, international lawyers, the good guys or are we the baddies?" International law has been able to affirm its existence by grounding itself in a tradition that provided a 'birth certificate' - the Peace Treaties of Münster and Osnabrück or 'Peace of Westphalia' – and a 'father' – mainly Hugo Grotius. Together, the Peace of Westphalia and Grotius' work De iure belli ac pacis libri tres (Three books on the law of war and peace) established State sovereignty as the source of international law's binding force, thus establishing international law as real law that is distinguishable from religious and moral sources of normativity. Simultaneously, grounding its existence in peace treaties that ended a 30-year period of war and chaos on the European continent and casting Hugo Grotius as a secular, peace-loving humanitarian allowed international lawyers to see themselves as invested in a project that served humanity as a whole and that would bring peace, order, and justice to the world.

In recent decades, TWAIL scholars have drawn attention to international law's sustained and central role in legitimizing and maintaining the colonial project. These critical histories of international law draw a different line of continuity from the writings of Hugo Grotius and Francisco de Vitoria to the establishment of international law as a formalized discipline in the nineteenth century and to international law in its present form. Simultaneously, the debates about the place of people like Hugo Grotius and Francisco de Vitoria and of events like the Peace of Westphalia in the history of international law have to be seen against the backdrop of broader methodological debates. Contextualist historical methodologies reject linear narratives altogether and instead aim at placing people and events in the context of their times. In her recent book, Anne Orford responds to the rising influence of these contextualist approaches to the history of international law, insisting that scholars writing histories of international law always create meaning instead of merely finding it.

B. Disputed Parenthood

I. Hugo Grotius, Francisco de Vitoria, and the Colonial Origins of International Law

1. Hugo Grotius and the Grotian Tradition in International Law

Hugo de Groot, whom we know by his Latinized name of Grotius, was born in Delft in 1583, at a time when the Dutch States General had just created the Dutch Republic by abjuring Philip II of Spain and Portugal as the ruler of the Low Countries. The newly founded Dutch Republic was looking to assert itself against Portugal and Spain, which, at the time, were the most important colonial powers. It was in this context that the Dutch East India Company (VOC) asked Grotius to write a defense of the Company's privateering campaign in waters that Portugal had claimed as an Estado de India under Portuguese control. Grotius completed the resulting manuscript, De Indis, in 1607-16-08 and, at the request of the VOC's Director, published chapter twelve of this manuscript in 1609 under the title Mare Liberum (The Free See). This first work of Grotius has long been neglected by mainstream histories of international law, which have focused almost exclusively on De iure belli ac pacis, which is considered to be the first systematic treatise of international law. The myth of Grotius as the 'founding father' of international law is an invention of the late 19th century. Key events in this regard were a commemoration of the tercentenary of Grotius's birth in 1883 at the New Church in Delft, the unveiling of a Grotius statue in the Delft market square in 1886, a ceremonious reburial of Grotius' remains in 1889, and, most importantly, the 1899 Hague Peace Conference.

As scholars of international law and international relations sought to reinvigorate the project of a peaceful international order created and maintained by international law after the Second World War, they did so by reclaiming Grotius and sketching a 'Grotian tradition' of international law and international relations. In a 'Grotian' international community, the power of the sovereign State is supposed to be restricted by the rationality of the law, which is equivalent to its systematicity. Hedley Bull took up the idea of a 'Grotian tradition' and contrasted it with a 'Hobbesian' and a 'Kantian' conception of international relations. Bull and other authors of the English School tradition in International Relations Theory see the Grotian conception of international society as a middle-ground position between, on one hand, a 'realist' or 'Hobbesian' view of international relations based on the unfettered sovereignty of States and, on the other hand, a 'universalist' or 'Kantian' idea of a cosmopolitan world society as a global community of humankind, in which international institutions represent individual human beings and are based on common values and globally shared interests.

'Grotian' may be seen as shorthand for liberal internationalism, i.e. for the idea that ordered law can create order through law in a way that is opposed to unfettered power, and for a belief in progress from a state of war and turmoil to a more just and peaceful international order. Boutros Boutros-Ghali's invocation of a 'Grotian moment' after the end of the Cold War illustrates this way of referring to the Grotian tradition: 'The community of nations has entered a new era. The international system that sustained us in the past has yet to be replaced. We are in the process of building a new international system, and we are doing so under unprecedented conditions. The outset of the modern age, some three and a half centuries ago, was an uncertain time, filled with both promise and peril. The foundations for a stable and progressive system of relations among States were laid, at that time, by Hugo de Groot (1583-1645), known as Grotius, the father of international law. Perhaps we have come to another such 'Grotian moment' in history, one in which a renaissance of international law is needed to help transform the world scene in this new era that all States have entered'. International legal scholars have repeatedly invoked 'Grotian moments', inter alia, to promote an interpretation of state sovereignty that places human rights at the center of said concept and therefore of international law,, to assess the role of international law after the invasion of Iraq in 2003,, to argue for the emergence of instant customary law in the field of international criminal law,, and to describe changes in the law of statehood. Invoking a 'Grotian moment' allows international legal scholars and representatives of international institutions simultaneously to argue for change and to ground their project in tradition.

Recent work focusing on the connection between Grotius's work and colonialism not only calls into question the flattering self-image of international law as a peace-seeking humanitarian discipline. It also challenges the assumption that the origins of modern international law can be found exclusively in Europe. Placing Grotius in the context of his role as legal advisor to the VOC shows that the questions he adressed in his work did not originate on the European continent but, outside Europe, through the colonial encounter.

2. Francisco de Vitoria

Hugo Grotius' strongest competitor for the role of 'father of international law' is Francisco de Vitoria. The argument put forward in favour of granting Vitoria and not Grotius this title is that, while Grotius may have presented the first systematic exposition of what was then called the Law of Nations, Grotius was already writing in a tradition that was founded by the so-called School of Salamanca, of which Francisco de Vitoria was, in turn, the founder and most prominent member. Vitoria was the first scholar to adapt the Roman concept of ius gentium to what we recognize now as an international context. The context to which he applied the term and its legal implications was the encounter between the Spanish empire and indigenous peoples in what is now known as South America and the Caribbean. His two lectures in which he first applied ius gentium were titled De Indis Noviter Inventis ['On the Indians Lately Discovered'] and De Jure Bellis Hispanorum in Barbaros ['On the Law of War Made by the Spaniards on the Barbarians'], and they were obviously concerned with a colonial relationship. The question of whether Vitoria was using ius gentium to condemn or at least reign in colonial violence or whether he was actually justifying and thereby enabling it is a hotly debated question. This question is debated so fiercely, because it is equated with the question of whether international law has been, from the beginning, humanitarian or imperialist in nature.

3. Other Contendants for the Title of 'Father of International Law'

Other figures on whom international legal scholars have relied as founders of include Francisco Suárez (1548-1617), Alberico Gentili (1552-1603), Emer de Vattel (1714-1767),and Jeremy Bentham (1748-1832), who coined the term 'public international law'.

II. Mothers of International Law?

As international law as a discipline is increasingly rallying around the goal of increased female representation not only in international institutions but also in the history of international (legal) thought, Christine de Pizan has emerged as the strongest contendant for the title of 'mother of international law'. Her claim to the title rests on the fact that she wrote a book on the laws of war and that she did so long before Grotius and even before Vitoria, Gentili, and Suárez. She is the author of the book titled Livre de Faits d'armes et de chevalerie(The Book of Deeds of Arms and of Chivalry), which is considered to be one of the first texts on the laws of war.

C. Birth Certificate: 'Westphalia' and the 'Westphalian System'

The myth of ‘Westphalia’ is the familiar story according to which the peace settlements of Münster and Osnabrück established a system of sovereign States in which we still live today. The myth was created in the 19th century and consolidated in its current form mainly based on an article written by Leo Gross in 1948. Gross was not the first one to pinpoint the beginning of ‘modern international law’ to the Peace of Westphalia and he admitted that the peace treaties of Münster and Osnabrück constituted a step ‘in the gradual, though by no means uniform, process which antedates and continues beyond the year 1648’ rather than a radical break. However, Gross also states that ‘Westphalia, for better or worse, marks the end of an epoch and the opening of another. It represents the majestic portal which leads from the old into the new world’. Gross exerted significant influence by unfolding what scholars of international relations and international law came to describe as the ‘Westphalian System’, a chiffre employed to refer to a framework for political and legal thought rather than to a historical reality. He presents a narrative of continuity spanning from the Peace of Westphalia to the Charter of the United Nations. According to this narrative, the Peace of Westphalia as ‘the first great European or world charter’ represents ‘the first of several attempts to establish something resembling world unity on the basis of states exercising untrammeled sovereignty over certain territories and subordinated to no earthly authority’. Gross substantiates this claim by stating that regarding the principle of religious tolerance, the purpose of achieving international cooperation, the guarantee of peace, and the establishment of rules for peaceful settlement of disputes, the UN Charter can be seen as the latest step in a line of evolution that began with the Peace of Westphalia.

The treaties themselves and the political and social circumstances in 1648 do not warrant the characteristics of the ‘Westphalian System’ attributed to it. Attributing the establishment of modern international law as a system based on state sovereignty to the Peace of Westphalia is – at best – a simplification. The developments that are commonly associated with ‘Westphalia’ either started more than a century before 1648 or did not take place until the 19th and 20th centuries. Particularly, the notion of territorial sovereignty that is supposed to be the cornerstone of the ‘Westphalian System’ was not explicitly referenced in the treaties.The peace treaties did indeed presuppose the sovereignty of the Swedish and French kings in the sense that they were not subordinated to the authority of the Emperor or the Pope. This conception of sovereignty, however, differed from the characteristics of the respective nineteenth century conception. The latter is the conception commonly referred to with the chiffre of the ‘Westphalian System’ and it includes the sovereign authority to dispose of the law. In contrast, the kind of sovereignty to which the peace traties of Münster and Osnabrück referred was grounded in natural law ideas and in the ideal of solidarity among monarchs. Instead of introducing a system of abstract territorial sovereignty, the Peace of Westphalia 'maintained a period of personal relations of power [...] in a complex patchwork of imperial and princely sovereignties and quasi-sovereignties until the early-nineteenth century and the final breakdown of the Holy Roman Empire'.

The common simplifications of historical processes and the habitual reference to ‘classical’ international law or ‘classical’ notions of sovereignty as ‘Westphalian’ engenders consequences regarding the conditions of possibility of present-day arguments about international law. By serving as the founding myth of both the system of sovereign states as a political system and the system of international law based on State (note the uppercase) sovereignty, the myth of ‘Westphalia’ not only establishes a hierarchy in which arguments derived from sovereignty seem to ‘fit’ the system and arguments that encroach on this sovereignty have to be framed as justified exceptions to the rule, but it also makes this normative hierarchy seem ‘natural’. By making these conditions of possibility for making international legal arguments seem natural, the myth of 'Westphalia' and all that is associated with it obfuscates how international law functions as a language of power.

Further reading

• Alonso Gurmendi, A Tale of Three Vitorias (Opinio Juris 1 April 2021)
• Martine van Ittersum, 'Hugo Grotius: The Making of a Founding Father of International Law' in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP 2016)
• Maïa Pal, Jurisdictional Accumulation. An Early Modern History of Law, Empires, and Capital (CUP 2021) 34-38
• Yasuaki Onuma, 'When was the Law of International Society Born?' 2 (2000) Journal of the History of International Law 1
• Stéphane Beaulac, ‘The Westphalian Legal Orthodoxy – Myth or Reality?’ 2 (2000) Journal of the History of International Law 148
• Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’ 55 (2001) International Organization 251
• Benno Teschke, The Myth of 1648: Class, Geopolitics, and the Making of Modern International Relations (Verso 2003)
• Richard Joyce, 'Westphalia - Event, memory, myth' in Fleur Johns, Richard Joyce, Sundhya Pahuja (eds), Events: The Force of International Law 55
• José- Manuel Barreto, 'Cerberus: Rethinking Grotius and the Westphalian System', in: Martti Koskenniemi / Walter Rech / Manuel Jiménez Fonseca (eds), International Law and Empire: Historical Explorations (OUP 2017) 149-176

Conclusion

• Summary I
• Summary II