Exploring the Evolution of International Law in Feudal Times
Foreword
The evolution of international law has always been intertwined with the broader historical, political and social contexts. This article delves into the critical developmental phases of this specific section of law during the feudal era, highlighting the efforts and ideas that have shaped its current framework. The major concerns of global law scholars and national states throughout history have centered on maintaining and strengthening peace, promoting adherence to foreign norms, fostering cooperation between states and ensuring global security.
Hugo Grotius, often regarded as the father of international law, introduced seminal ideas concerning its principles and rules. He emphasized the importance of respecting these rules, understanding and cooperation between states, and establishing regulations to mitigate the cruelties of war. Grotius also underlined the necessity of treaties between countries, advocating for their observance and application in good faith.
One of the pivotal aspects of maintaining peace has been multilateral aid through conventions, agreements, and treaties. The gradual evolution of interstate relationships has extended beyond bilateral agreements to encompass broader, multilateral treaties aimed at harmonizing international relations. Throughout history, states have continuously sought to adopt various methods to prevent conflicts and sustain peace. This endeavor has translated into practical measures, including the conclusion of multilateral treaties and agreements.
The multilateral assistance between states in creating and applying international law norms has resulted in a myriad of treaties—peace, alliance, mutual aid, military, commercial, political, economic, cultural, technical and scientific. Additionally, international conventions, both regional and global, have been established through international conferences and organizations.
The purpose of this article is to identify the norms of international law that emerged during the feudal era and to recognize the contributions of scholars of that time to its development.
Figure 1: Sessio tribunalis Vehmici, anno 1375.
The Formation of International Norms in Feudal Times
The development of international relationships, from the inception of human society to the present, reveals a complex interdependence with the formation and evolution of international public law. International law cannot be conceived independently of political factors, as these significantly influence the nature of international relationships. The evolution of international public law aligns with the formation of human collectivities, their interactions and their organization into states, spanning several significant epochs: antiquity, the classical period, and the modern and contemporary periods.
The evolution of international public law can be divided into distinct phases: the pre-state period, antiquity, feudal times, the modern age and the contemporary age. During the pre-state period, various practices and customs emerged among tribal communities, determined by good neighborly relations long before the formation of formal states. These early interactions laid the groundwork for the development of international law norms.
With the beginning of feudalism, the dissolution of the Western Roman Empire and the absence of strong central authorities led to a stagnation, and in some areas, a regression of international law norms. Between the fourth and eighth centuries, various states emerged from the ruins of the former Empire. These states concluded peace treaties, alliances, and armistices among themselves and with the Byzantine Empire, often guaranteed by hostage-taking. The formation of the Holy Roman Empire in 962 and the rise of Papal authority with centralizing tendencies led to the conclusion of various treaties in fields such as commerce and navigation, as well as diplomatic relationships with states outside the Empire, including England, Sweden, Arab states, and countries in Africa and Asia.
The increasing feudal fragmentation and proliferation of wars among small European states prompted the Catholic Church to use its vast spiritual and moral authority to limit the damaging effects of war. The religious ideas of humanism, based on love for people, contributed significantly to the creation of interpersonal and interstate relationships. The Church imposed the "Peace of God," establishing days when warfare was forbidden under the threat of religious excommunication for those who infringed it. The Council of Lateran in 1139, for instance, forbade the use of crossbows and the enslavement of Christian prisoners.
As expected, the practice of concluding treaties grew, encompassing rules for conducting wars and the transmission of territories through inheritance, marriage or sale. These treaties were guaranteed through oaths, religious pledges, mortgages, castles, fortresses, jewelry or hostage-taking. Trade treaties also developed, becoming a frequent practice among free Italian cities. These cities concluded agreements with each other and with entities such as the Byzantine Empire, the Hanseatic League, Arab sovereigns, the Sultan, and other cities in the Netherlands, France and Spain. An example of such an agreement is the Treaty of 1171, by which Ferrare obliged itself to Venice, Bologna, Mantua, Milan, Modena and Ravenna to ensure freedom of transit on the Po River.
Figure 2: St. Bernard at the Second Lateran Council in Rome, Cloister of the Cistercian Monastery, Altenberg, probably Master of St. Severin, Cologne (1505-1520)
These treaties contained clauses that withheld economic and trade privileges, took away the right of distress (i.e. the returning of property lost through shipwreck), prohibited piracy, and in some cases, addressed consular jurisdiction and extraterritorial arrangements for neighborhoods inhabited by Italians. This period marked the beginning of the strengthening of the idea of sovereignty, even though war remained the primary means of resolving conflicts. Institutions of classic international law for using force, such as retorsion, retaliation and peaceful blockade, began to take shape, and there was an effort to circumscribe the legally admitted reasons for starting a war. Simultaneously, the legal rules concerning the conduct of military operations received more solid justification.
Foundations of Modern International Relations Law
The evolution of international law has been significantly shaped by the laws and customs of war, which now encompass two fundamental principles that are crucial for regulating armed conflicts: the principle of necessity and the humanitarian principle. These principles have decisively influenced the progress of international law concerning the conduct of hostilities.
The principle of necessity dictates that the armed forces of belligerent parties should only be employed to defeat the enemy's resistance and secure victory, rather than to engage in unnecessary violence. This principle emphasizes that military actions should be directed towards achieving specific, legitimate military objectives and not towards wanton destruction or the infliction of excessive harm. The focus is on limiting the use of force to what is necessary to achieve the military goal, thereby minimizing collateral damage and unnecessary suffering.
The humanitarian principle requires that military means and methods used in conflict should be aimed solely at combatants and not at civilians or non-combatants. This principle mandates that fighters must only use weapons and tactics that incapacitate the enemy without causing undue suffering or aiming for their physical extermination. The goal is to ensure that military actions are conducted in a manner that spares non-combatants and reduces unnecessary suffering among combatants. This principle is deeply rooted in the concepts of humanity and proportionality, which are essential to the laws of war.
The Middle Ages witnessed significant developments in the conclusion of peace treaties, alliances and politico-military treaties, which often involved the transfer of territories and other political arrangements. The intensification of maritime trade led to attempts to codify international customs through internal laws, particularly in the context of sea navigation. Notable works in this regard include the laws of Oleron from the 12th century, which regulated navigation rules in European ports, and the Consolato del Mare from the 14th century, which articulated the principle of free navigation for neutral states during wartime and codified customary law rules related to maritime navigation.
The idea of a "just war," as promoted by Christian doctrinaires such as St. Augustine and Thomas Aquinas, sought to reconcile religious precepts with political interests. However, this doctrine often had negative practical implications. Each party in a conflict tended to view its war as just and the opponent's as unjust, leading to prolonged conflicts, the exhaustion of resources, and a total disregard for the protection of persons and property unrelated to the war. This concept contributed to the extension and intensification of wars, often disregarding the ethical and humanitarian considerations that are now fundamental to international law.
Figure 3: Articles 1-3 of the Laws of Oléron in BL Cotton Vespasian. B. XXII, f. 25. From Monumenta Juridica: The Black Book of the Admiralty, vol. I, ed. T. Twiss, Rolls Series 55 (1871), frontispiece.
The principles of necessity and humanity have become cornerstone elements in the evolution of international law governing armed conflicts. These principles aim to limit the use of force to legitimate military objectives and to protect non-combatants from the ravages of war. Historical attempts to codify maritime law and the development of the just war doctrine have also played significant roles in shaping contemporary international legal standards. The ongoing refinement of these principles reflects a commitment to mitigating the horrors of war and ensuring that military conduct adheres to ethical and humanitarian standards.
The Byzantine Empire and the Evolution of International Law
The Byzantine Empire, which existed from 395 to 1453, significantly influenced the development of international law, particularly through its practice of treaty-making and diplomacy. Historical records reveal that the Byzantine emperors, such as Emperor Bezileu, concluded treaties with various powers, including the Persian king, Russian princes and Arab caliphs. These diplomatic efforts and legal agreements laid a foundation that later became a model for other states around the world.
The collapse of feudalism initiated a process of state centralization that resulted in the formation of strong centralized states by the 15th century. This centralization fostered the expansion of international relationships and the emergence of new principles and institutions that accelerated the development of international law. During this period, professional and trade activities flourished, leading to the rise of a national bourgeoisie. Additionally, geographical discoveries and colonial expansions led to the establishment of legally acceptable systems of dependence, further influencing international law.
Feudal society's political landscape was characterized by two major rivalries that played crucial roles in shaping new ideas in international law. The first rivalry was between the papacy and royalty over the domination of Christian European society. The second was the power struggle between kings and feudal lords regarding the centralization of authority in the hands of sovereigns. These conflicts also impacted the formation of legal norms, with Canon law holding preeminence for a period, especially considering that many international law institutions, such as the right of asylum, armistice and sanctions, originated from the church or were privileges exclusively held by the Pope.
The Pope often acted as an arbitrator between monarchs, as evidenced by Pope Alexander VI's 1493 papal bull that divided the recently discovered New World between Spain and Portugal and Pope Hadrian IV's authorization of Henry II's conquest of Ireland.
Figure 4: The Resurrection with Alexander VI , fresco, by Pinturicchio, 1492-1494. Hall of the Mysteries of the Faith, Borgia Apartments, Apostolic Palace, Vatican City
Byzantine diplomacy gradually became a prototype for other states. The intricate and sophisticated nature of Byzantine diplomatic practices, combined with their legal and administrative innovations, set standards that were emulated by emerging European states. The Byzantine Empire's treaties not only aimed at securing peace and alliances but also established precedents for legal and diplomatic conduct that influenced later European practices.
The centralization of states in the post-feudal era also brought about the establishment of principles and institutions that were vital to the development of international law. These included the codification of customary practices and the formalization of diplomatic protocols. The period saw a significant increase in the codification of laws, such as maritime laws and trade agreements, which facilitated international commerce and navigation. Works like the "Laws of Oleron" from the 12th century and the "Consolato del Mare" from the 14th century exemplify early efforts to regulate sea trade and navigation.
The dissolution of feudalism and the rise of centralized states further accelerated the development of international law, with significant contributions from both secular and ecclesiastical authorities. The complex interplay of political power, legal norms and diplomatic practices during this period laid the groundwork for the modern system of international law. The influence of Byzantine diplomacy and the legal innovations of this era continue to be felt in contemporary international relations and legal frameworks.
Scholarly Contributions to the Foundations of Foreign Law
The evolution of international law has been profoundly shaped by the gradual shift away from the Church's influence and the increasing role of diplomatic missions and military regulations. This transition saw the establishment of humanitarian rules for warfare and legal measures against piracy, notably in English and French criminal legislation, which included the death penalty for such offenses. Despite these advancements, the wars of the era, particularly the Thirty Years' War (1618-1648), were marked by extreme cruelty. Hugo Grotius, in his seminal work De Jure Belli ac Pacis (1625), highlighted the widespread disregard for humanitarian principles during these conflicts. Grotius argued strongly for a coherent system of humanitarian rules to protect both combatants and non-combatants, including hostages and prisoners, as well as their property. His work significantly influenced contemporary international legal thought and practice.
One of the major milestones in the development of international law was the articulation of the principle of sovereignty. This principle emerged as an assertion of the independence of kings and feudal lords against the aspirations of domination by German emperors and the omnipotence of the popes. The Peace of Westphalia (1648) gave this principle a more coherent expression. The negotiations of this peace treaty connected European countries regardless of their legal and religious regimes. The treaties of Westphalia granted German princes the right to conduct independent foreign policies, declare war, conclude peace and make treaties, provided their policies were not hostile to the German Empire. These treaties ended the political domination of the Holy Roman Empire and the Pope, asserting the sovereignty and independence of national states and the principle of the balance of power among them.
Figure 5: Allegory of Hugo Grotius and the Peace of Westphalia 1648, by Gerard ter Borch. City Museum of Münster
Many scholars of international law assert that the Peace of Westphalia marks the beginning of modern European international law. The treaties' importance lay in the formal legalization of the new European structure, their contribution to the affirmation of state sovereignty and equality as fundamental principles, and the establishment of total religious freedom through the principle cujus regio ejus religio (to whom belongs the reign, also belongs the religion). This principle allowed monarchs to determine the religion practiced throughout their territories, symbolizing the victory of monarchy over papal authority.
The treaties also contained provisions for peaceful resolution of disputes, stipulating that the aggrieved party must seek peaceful means before resorting to military action, and that all signatory states could take military action against a guilty state if peaceful measures failed within three months. Although these provisions were not always applied, they demonstrated a significant and ongoing concern for organizing relationships between states. Furthermore, the Peace of Westphalia established the supremacy of France, making French the official language of diplomacy, replacing Latin.
The French hegemony ended with the Peace of Utrecht in 1713, which introduced the principle of the balance of power. This principle allowed states to form alliances to prevent any one state or group of states from becoming too powerful. The concept of a "just balance of power" aimed to restore peace and stability within Christendom.
The contributions of scholars and the treaties of Westphalia and Utrecht laid crucial foundations for modern international law, these developments emphasized the sovereignty and equality of states, the necessity of humanitarian rules in warfare, and the importance of diplomatic and peaceful resolutions of conflicts, shaping the framework of international relations that continues to evolve today.
Figure 6: Fireworks at the celebration of the Peace of Utrecht, 1713. Origin: Northern Netherlands. Rijksmuseum
Conclusion
The evolution of universal relationships and law from antiquity through the feudal period was marked by predominantly bilateral collaborations. This trend significantly expanded during the modern era, with regional and even global interactions becoming more prominent due to the establishment of the first international organizations with universal reach. Despite the availability of isolated or fragmentary theories about the development of early global public law since the formation of states, powerful states have historically influenced the drafting and establishment of regulations to their benefit. Up to the early 20th century, foreign law generally reflected the interests of dominant states, emphasizing power dynamics and the primacy of politics over law.
As society developed and interdependencies between states increased, the values and common interests among the members of the community also multiplied. The promotion and implementation of these shared values and interests required specific legal rules that needed to be accepted, implemented and respected by all states. This shift reflects a growing recognition of the importance of collaboration and adherence to global norms for achieving collective goals and maintaining global stability.
The modern period, therefore, represents a crucial phase in the evolution of international law, where the focus has shifted from serving the interests of dominant states to fostering a more balanced and cooperative community. This transition underscores the need for a robust legal framework that can accommodate the diverse interests and values of all states, ensuring fair and equitable conduct in institutional relations. The continued development and acceptance of international legal norms are essential for addressing contemporary global challenges and promoting a more just and orderly system.
Bibliographical References
Grotius, H. (1625). De Jure Belli ac Pacis (On the Law of War and Peace).
Nussbaum, A. (1954). A Concise History of the Law of Nations. Macmillan.
Ullmann, W. (1975). Law and Politics in the Middle Ages: An Introduction to the Sources of Medieval Political Ideas. Cornell University Press.
Hinsley, F. H. (1963). Power and the Pursuit of Peace: Theory and Practice in the History of Relations Between States. Cambridge University Press.
Lauterpacht, H. (1970). International Law and Human Rights. Archon Books.
Parry, C. (1965). The Sources and Evidences of International Law. Manchester University Press.
Pivniceru, T. (2007). The History of International Law and the Evolution of International Relations. Polirom.
Visual References
Visual References
Figure 1: Sessio tribunalis Vehmici, anno 1375.
https://nobility.org/2019/11/a-medieval-lord-defends-his-subject-from-a-bad-judge/
Figure 2: St. Bernard at the Second Lateran Council in Rome, Cloister of the Cistercian Monastery, Altenberg, probably Master of St. Severin, Cologne (1505-1520)
https://holyfamilycatechism.ca/the-21-ecumenical-councils/
Figure 3: Articles 1-3 of the Laws of Oléron in BL Cotton Vespasian. B. xxii, f. 25. From
Monumenta Juridica: The Black Book of the Admiralty, vol. I, ed. T. Twiss, Rolls Series 55 (1871), frontispiece.
Figure 4: The Resurrection with Alexander VI (detail), fresco, by Pinturicchio, 1492-1494 (Hall of the Mysteries of the Faith, Borgia Apartments, Apostolic Palace, Vatican City).
Figure 5: Allegory of Hugo Grotius and the Peace of Westphalia 1648, by Gerard ter Borch. City Museum of Münster
https://useum.org/artwork/Allegory-of-Hugo-Grotius-and-the-Peace-of-Westphalia-Gerard-ter-Borch-1648
Figure 6: Fireworks at the celebration of the Peace of Utrecht, 1713. Origin: Northern Netherlands. Rijksmuseum.
The evolution of universal relationships and law from antiquity through the feudal period was marked by predominantly bilateral collaborations. URL
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