1 Dante, , De Monarchia (On World Government) (Liberal Arts ed. 1949)Google Scholar. See also Dante and World Empire, in The Social and Political Ideas of Some Great Medieval Thinkers, ch. V (F. J. C. Hearnshaw ed. 1923); F. Hinsley, Power and the Pursuit of Peace 14–19 (1963). According to Hinsley, De monarchia was not published until the 16th century. It was placed on the Index in 1554.

2 Bryce, J., The Holy Roman Empire (1904)Google Scholar.

3 Id., chs. XV–XVIII.

4 Ibid. See also Brierly, J., The Law of Nations, ch. I (6th ed. 1963)Google Scholar.

5 J . Bryce, supra note 2, ch. XX; Schaefer, , The Medieval Empire Made Germany a Nation , in The Holy Roman Empire in the Middle Ages 17 (Herzstein, R. E. ed. 1966)Google Scholar.

6 J. Bryce, supra note 2, ch. XX; Gross, , The Peace of Westphalia, 1648–1948 , 42 AJIL 20 (1948)Google Scholar. See also Falk, , A New Paradigm for International Legal Studies: Prospects and Proposal , 84 Yale L.J. 969, 980–87 (1975)Google Scholar. The text of the Treaty of Westphalia appears in 1 Major Peace Treaties of Modern History 7 (F. L. Israel ed. 1967).

7 Suárez, F., De Legibus Ac Deo Legislatore, bk. II, ch. XIX, para. 9, in 2 Suárez, Selections from Three Works (Carnegie Endowment trans. 1944)Google Scholar. See also Francisco, Suarez, In The Social and Political Ideas of Some Great Thinkers of the Sixteenth and Seventeenth Centuries, ch. 4 (Hearnshaw, F. J. C. ed. 1926)Google Scholar.

8 2 Grotius, H., De Jure Belli Ac Pacis, bk. I, ch. I, pt. X (Carnegie Endowment trans. 1925)Google Scholar [hereinafter cited as De Jure Belli Ac Pacis]. The influence of Suárez upon Grotius has been a matter of scholarly dispute. See, e.g., 2 F. Suárez, Selections, supra note 7, Introduction.

For general studies of Grotius, see Dumbauld, E., The Life and Legal Writings of Hugo Grotius (1969)Google Scholar; Great Thinkers of the Sixteenth and Seventeenth Centuries, supra note 7, ch. VI; Holland, T., Studies in International Law (1898)Google Scholar; Walker, T., A History of the Law of Nations 278–336 (1899)Google Scholar; Westlake, J., Chapters on the Principles of International Law, ch. III (1894)Google Scholar; Brierly, J., supra note 4, at 29–35 Google Scholar; Nussbaum, A., A Concise History of The Law of Nations, ch. IV (1947)Google Scholar; Lauterpacht, H., The Grotian Tradition in International Law , 23 Brit. Y.B. Int’l L. 1 (1946)Google Scholar, reprinted in 2 International Law, Collected Papers (Lauterpacht, E. ed. 1975)Google Scholar; Del, Vecchio, Grotius and the Foundations of International Law , 37 N.Y.U.L. Rev. 260 (1962)Google Scholar; van, Vollenhoven, Grotius and the Study of Law , 19 AJIL 1 (1925)Google Scholar; Balogh, , The Traditional Element in Grotius’ Conception of International Law , 7 N.Y.U.L.Q. 261 (1929)Google Scholar; Edwards, C. S., Hugo, Grotius, The Miracle of Holland (1981)Google Scholar; Bull, , The Grotian Conception of International Society , in Diplomatic Investigations, ch. 3 (Butterfield, H. & Wight, M. eds. 1966)Google Scholar.

9 De, Jure Belli Ac Pacis, bk. I, ch. I, pt. XV (Carnegie trans. 1925)Google Scholar. The text of the Prolegomena, which appears in the Carnegie translation, is reprinted in Grotius: Law of War and Peace, 35 AJIL 205 (1941). See also Reeves, , The First Edition of Grotius’ De Jure Belli Ac Pacis, 1625 , 19 id. at 12 (1925)Google Scholar; and Grotius’ De Jure Belli Ac Pacis: A Bibliographic Account, id. at 251.

10 De Jure Belli Ac Pacis, bk. I, chs. II–IV; bk. II, ch. I. Compare F. Suárez, On Charity, Disputation XIII, in 2 Selections, supra note 7, at 799; F. Vitoria, De jure belli, in De Indis Et De Jure Belli (1696) (Carnegie trans. 1917). But see Bull, supra note 8. Bull criticizes the enforcement thesis of the Grotian tradition, which assumes that a consensus can be reached within international society as to the justice of a particular war. Bull argues that the Grotian ideal is unworkable and impedes the operation of positive rules that limit the scope of war.

11 De Jure Belli ac Pacis, bk. II, ch. I, pt. XVII.

12 Id., bk. I, ch. IV, pt. 1.3; Bk. II, ch. XXVI, pt. III.

13 Id., bk. III, chs. IV and XI, pt. XI.

14 Id., bk. II, ch. I, pt. VIII. Compare bk. I, ch. II, pt. VIII.

15 In 1623 Emeric Crucé published a pamphlet entitled Le Nouveau Cynée, an impassioned attempt to persuade the princes of his time of the folly of war. He wrote:

The distances that separate domiciles cannot lessen in any way the ties created by blood, nor can they take away the basic similarity in men’s nature which is the true foundation of friendship and human society. Why should I, a Frenchman, wish to harm an Englishman, a Spaniard, or an Indian? I cannot when I consider that they are men as I am, and that just as they, I am subject to error and sin, and that all nations are joined by a natural and insoluble bond. This tie means that one man cannot call another an alien unless he follows the common, deeply–rooted prejudice passed down from generation to generation.

E. Crucé, The New Cineas 36–37 (C. F. & E. R. Farrell trans. 1971).

16 See, e.g., De Jure Belli ac Pacis, bk. III, ch. XXV; bk. I, ch. II, pt. VIII; bk. III, ch. IV, pt. XIX.

17 E.g., the Sack of Magdeburg in 1631 when 24,000 inhabitants were slaughtered. See H. Lauterpacht, supra note 8, at 14.

18 Some international capacity, such as the power of making alliances, was conferred upon more than 300 members of the Holy Roman Empire. A. Nussbaum, supra note 8, at 115; Falk, supra note 6, at 985.

19 De Jure Belli ac Pacis, bk. II, ch. XXII, pts. XIII–XIV.

20 Grotius, Prolegomena, supra note 9, para. 6.

21 Hobbes lived from 1588 to 1679. Elementa philosophica de cive was published in 1642 and republished in 1647. Leviathan was published in 1651. For a summary of Hobbes’s influence upon international theory, see E. Dickinson, The Equality of States in International Law, ch. III (1920).

22 T. Hobbes, Leviathan, ch. XXX; and Elementa Philosophica De Cive, ch. XIV.

23 S. Hampshire, Spinoza (1952). See also Spinoza, in Great Thinkers of the Sixteenth and Seventeenth Centuries, supra note 7, ch. IX.

24 S. Hampshire, supra note 23, ch. 4.

25 Spinoza, B., A Treatise on Politics, ch. III (1677)Google Scholar. Lauterpacht, H., Spinoza and International Law , 8 Brit. Y.B. Int’l L. 89 (1927)Google Scholar.

26 Compare De Jure Belli Ac Pacis, bk. II, chs. XXII–XXIV.

27 De jure naturae was preceded by Elementorum jurisprudentiae universalis (The Elements of Universal Jurisprudence) in 1660 and followed by De officio hominis et civis (The Duty of Man and Citizen) in 1673.

28 Pufendorf, S., De Jure Naturae Et Gentium, bk. I (Carnegie trans. 1934)Google Scholar [hereinafter cited as De Jure Naturae]. Compare Elementorum Jurisprudentiae passim (Carnegie trans. 1931).

29 De Jure Naturae, bk. I, ch. VI. Compare Elementorum Jurisprudentiae, Definition XIV. Unlike Grotius, Pufendorf did not admit of a jus voluntarium divinum regulating international behavior. Natural law, which is common to all men, is derived from the interaction of reason and will. Civil law refers to the rules imposed in a single state. Moral theology concerns the dictates given to Christians in Holy Scripture. Following the Lutheran tradition, natural law, directed to the external conduct of man, makes man a worthy member of human society. The precepts of moral theology, directed at the heart, train the citizen of the heavenly city who is only a sojourner on earth. See De officio hominis et civis, Greeting (Carnegie trans. 1927) [hereinafter cited as De officio].

30 De jure naturae, bk. II, ch. I, paras. 3–8; bk. II, ch. Ill, paras. 13–15.

31 [W]e cannot agree with Grotius, when he says in his Prolegomena that natural laws “will have some place, even if we should grant—what can only be done with the greatest impiety— that there is no God, or that He does not concern Himself with the affairs of men” [Prolegomena, para. 11]. For if some man should devise such an impious and idiotic theory, and imagine that mankind had sprung from itself, then the dictates of reason could in no possible way have the force of law, since law necessarily supposes a superior.

De Jure Naturae, bk. II, ch. III, para. 19. Compare the study of Grotius by Professor Edwards, supra note 8. The thesis of that work is that Grotius was not a secularist but rather retained theological presuppositions in his work.

32 Id., bk. II, ch. III, para. 15.

33 Id., bk. II, ch. II.

34 Id., bk. II, ch. III, paras. 3–8.

35 Id., bk. III, ch. II.

36 Id., bk. II, ch. III.

37 F. Suárez, De Legibus, supra note 7, bk. II, chs. XVII–XX.

38 See De Jure Belli ac Pacis, bk. I, ch. I, pt. XIV.

39 De Jure Naturae, bk. II, ch. Ill, para. 23.

40 Ibid.

41 Id., bk. II, ch. II, para. 9. See the discussion in E. Dickinson, supra note 21, at 75–81.

42 De jure naturae, bk. II. ch. II.

43 De officio, bk. II, ch. XVIII.

44 De jure naturae, bk. II, ch. II, para. 11. But see De officio, chs. XVI and XVII.

45 De jure naturae, bk. II, ch. II, para. 12.

46 Government, indeed, is a natural thing, and it was nature’s intention that men should set up governments among themselves. But it was no less the purpose of nature that he who holds supreme authority over other men should be free from any interference on their part, and should thereby enjoy natural liberty; unless, indeed, we choose to admit into the same order something superior even to what is supreme. And for this reason it is in accordance with nature that the man who has no master should govern himself and his actions by the dictates of his own reason.

Id., bk. II, ch. II, para. 4. See also E. Dickinson, supra note 21, ch. III.

47 De jure naturae, bk. VIII, ch. VI, paras. 3–7. Compare bk. II, ch. V, paras. 4–8. There is some slight qualification in De officio, bk. II, ch. XVI, para. 12.

48 De Jure Belli ac Pacis, bk. II, ch. I, pts. XVI–XVII.

49 De jure naturae, bk. II, ch. IV.

50 Id., bk. II, ch. V, para. 6.

51 De jure belli ac pacis, bk. II, chs. XI–XV; bk. III, chs. XI–XX.

52 De jure naturae, bk. VIII, ch. VII.

5 3 De jure belli ac pacis, bk. III, ch. XIX, pt. XI.

54 Brierly, J., Some Considerations on the Obsolescence of Treaties , in The Basis of Obligation in International Law 115 (Lauterpacht, H. & Waldock, C. H. M. eds. 1958)Google Scholar.

55 De jure naturae, bk. VIII, ch. VIII.

56 See the description of the climate in the 18th century in Ruddy, F., International Law in the Enlightenment, ch. 2 (1975)Google Scholar.

57 In the 18th century Jean Barbeyrac translated Pufendorf’s De jure naturae et gentium and the De jure belli ac pacis into French, with notes and cross–references. Barbeyrac was then translated into English and appended to English editions of the two classics. There was no doubt of Barbeyrac’s preference for Pufendorf, and his attitude tended to discredit Grotius and spread the ideas of the German jurist. E. Dickinson, supra note 21, at 83–84. Over time, the theories of Pufendorf and Grotius were understood as being mutually antagonistic.

58 Dante, De monarchia, bk. III. Pope Boniface VIII in the bull Unam Sanctum (1302) had claimed absolute sovereignty, subject to divine law, over all of Christendom. It was provoked by the attempt of the French King, Philip IV, to tax the French clergy without prior papal consent. See Falk, supra note 6, at 981.

59 Aristotle, Politics, bk. I, ch. 2.

60 Sabine, G., A History of Political Theory, ch. XIV (3d ed. 1961)Google Scholar.

61 Pierre Du Bois and the Domination of France, in Social and Political Ideas of Some Great Medieval Thinkers, supra note 1.

62 See Gross, supra note 6, at 30–31.

63 When the Emperor Charles V was Charles I of Spain, Vitoria held that the emperor is not the lord of the whole world and that the Pope did not have universal civil authority. According to the Spanish jurist, the Pope had the right to pass judgment upon the conflicting claims of Christian sovereigns where war is imminent. D E INDIS, supra note 10, sec. II. Soto reached similar conclusions, as did Suárez. See B. Hamilton, Political Thought in 16th Century Spain (1963).

64 F. Suárez, De legibus, supra note 7, bk. III, ch. IV, para. 7. On the jus gentium, see id., bk. II, ch. XIX, para. 6.

The claim has been made that the two conceptions—that of self–sufficiency on the one hand, and membership in a wider community on the other—are fundamentally irreconcilable. Brierly, J., Suárez’s Vision of a World Community , in The Basis of Obligation, supra note 54, at 358, 362 Google Scholar. This criticism would seem to reflect, albeit unconsciously, the conception of law derived from modern legal positivism. The Spanish jurist–theologian accepted the jus gentium as law even though not the command of a superior. A more telling criticism would be that Suarez’s conception is incomplete or insufficient.

65 The Spanish mind . . . contemplates the universe as subject to the reign of jurisprudence . . . Suarez’ treatise . . . lifts jurisprudence from being the science of individual litigation into a philosophy of the universe. This was the atmosphere in which International Law grew up, and without which it was impossible that it should have grown up.

Figgis, J. N., Studies of Political Thought from Gerson to Grotius 188–89 (1907)Google Scholar.

66 “[I]n the first instance men joined themselves together to form a civil society not by command of God, but of their own free will, being influenced by their experience of the weakness of isolated households against attack. From this origin, the civil power is derived. . . .” De jure belli ac pacis, bk. I, ch. IV, pt. VII.3.

[I]t is not enough to say that man is by Nature herself drawn into civil society, so that without it he cannot and will not live. For surely it is evident that man is an animal of the kind that loves itself and its interest to the utmost degree. When, therefore, he voluntarily seeks civil society, it must be that he has had regard to some utility which he will derive from it for himself. And though, outside of society with his kind, man would have been much the most miserable of creatures, still the natural desires and necessities of man could have been abundantly satisfied through the first communities, and the duties performed out of humanity or by agreement. Hence it cannot at once be inferred from man’s sociability that his nature does tend exactly to civil society.

S. Pufendorf, De officio, bk. II, ch. V, para. 2.

67 Burlamaqui, Principes du droit naturel, quoted in E. Dickinson, supra note 21, at 88.

68 See, e.g., the appraisal of Sully’s Grand Design in F. Hinsley, supra note 1, at 25–32.

69 J. Westlake, supra note 8, ch. IV. The gaps were being filled by jurists such as Bynkershoek, who hoped to ground a common law of nations upon reason and custom. See his Quaestionum Juris Publici (Carnegie trans. 1930). And see the reaction to Pufendorf in S. Rachel, De jure naturae et gentium dissertationes (1676) (Carnegie trans. 1916).