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The Myth of Primordialism in Cicero's Theory of Jus Gentium

Published online by Cambridge University Press:  30 July 2010

WILLIAM E. CONKLIN
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Abstract

After setting out the importance of the notion of an international community in contemporary treaties, International Court of Justice judgments and opinio juris, this paper claims that we need to turn to Cicero's works in order to appreciate a sense of what an international community is. Cicero was the first jurist known to recognize and elaborate a theory of the international community and this through his concept of jus gentium. Cicero's theory of jus gentium, I argue, was neither a positivist theory nor a natural law theory. Instead, jus gentium dwelt in an intermediate position between posited state laws and the laws of nature. I find a problem, however, in that Cicero exempts certain types of society from the guidance and protection of the jus gentium. I document examples of the sort of society so exempted. In order to understand why Cicero exempts such societies from the protection of the jus gentium, I argue, Cicero's theory depends on a primordial condition where human beings, living an animal-like existence, lack a language and reason. Cicero posits that human beings must leap from such a primordial condition into a civilized world where language is shared. Cicero associates a civilized world with communication, deliberation, reason, and law, particularly the jus gentium. His theory of jus gentium thereby hierarchizes societies and begs that we ask whether such a hierarchy remains presupposed in contemporary international law and international legal theory.

Keywords

Ciceroexclusions from universal jurisdictionjus gentiummythprimordialism
Type
ARTICLES
Information
Leiden Journal of International Law , Volume 23 , Issue 3 , September 2010 , pp. 479 - 506
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 J. Crawford, The International Law Commission's Articles on State Responsibility (2002).

2 See, e.g., 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between Organisations (21 March 1986), UN Doc. A/CONF.129/15 (20 March 1986) (not yet in force as of 16 March 2009), Art. 53; Vienna Convention on the Law of Treaties, 1155 UNTS 331 (23 May 1969), Art. 53; United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome Statute of the International Criminal Court, UN Doc. A/Conf.183/9 (17 July 1998), para. 9, preamble; 1979 International Convention against the Taking of Hostages, 1316 UNTS 205 (17 December 1979), para. 4, preamble; 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1035 UNTS 167 (14 December 1973), para. 3, preamble.

3 Barcelona Traction, Light and Power Company, Limited (New Application 1962) (Belgium v. Spain), [1970] ICJ Rep. 3, paras. 33–34, at 32 (5 February).

4 See, e.g., Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Provisional Measures, [2000] ICJ Rep. 182 (Order of December 8); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep. 16 (21 June); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep. 226, para. 83, at 258 (8 July); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, [1996] ICJ Rep. 595, paras. 31–32, at 615–16 (11 July); East Timor (Portugal v. Australia), [1995] ICJ Rep. 90, at 172, 213–16 (30 June); South West Africa, Second Phase (Ethiopia v. South Africa; Liberia v. South Africa), [1966] ICJ Rep. 373 (18 July) (dissenting opinion of Judge Jessup); Reservations to Convention on Prevention and Punishment of the Crime of Genocide, Advisory Opinion, [1951] ICJ Rep. 15, at 23 (28 May).

5 See W. E. Conklin, Hegel's Laws: The Legitimacy of a Modern Legal Order (2008).

6 See, e.g., United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), [1979] ICJ Rep. 7, at 19 (Order of 15 December), and Judgment, [1980] ICJ Rep. 3, para. 92, at 43 (24 May). See also especially East Timor (Portugal v. Australia), supra note 4, at 102, 172, 213–16 (dissenting opinion of Judge Weeramantry); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, [1986] ICJ Rep. 14, para. 190, at 100 (27 June). Prosecutor v. Anto Furundzija, Case No. IT-95–17/1-T, Trial Judgment, 121 ILR 218, paras. 151–157, at 260–2 (10 December 1998).

7 G. Postema, ‘Custom in International Law as a Normative Practice’, in A. Perreau-Saussine and J. B. Murphy (eds.), Nature of Customary Law (2007), 279–306; B. Tierney, ‘Vitoria and Suarez on Jus Gentium, Natural Law, and Custom’, ibid.; P. Allott, Eunomia: New Order for a New World (1990), paras. 13.104, 16.2; M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989), 74–85; Pagden, A., ‘Beyond Anarchical Society: Grotius Colonialism and Order in World Politics’, (2004) 2 Perspectives on Politics 428CrossRefGoogle Scholar; Brett, A., ‘Natural Right and Civil Community: The Civil Philosophy of Hugo Grotius’, (2002) 45 Historical Journal 31CrossRefGoogle Scholar; Rabkin, J., ‘Grotius, Vattel and Locke: An Older View of Liberalism and Nationality’, (1997) 59 Review of Politics 293CrossRefGoogle Scholar; H. Lauterpacht, ‘Private Law Sources and Analogies of International Law’, in H. Lauterpacht, International Law: Collected Papers of Hersch Lauterpacht, ed. E. Lauterpacht (1975), II, 173, at 188–91; see also ibid., 307–65 (‘The Grotian Tradition in International Law’). See also H. Bull, The Anarchical Society (1977); H. Bull, ‘The Emergence of a Universal International Society’, in H. Bull and A. Watson (eds.), The Expansion of International Society (1984), 117, at 117–20; A. Watson, ‘European International Society and Its Expansion’, ibid., 13, at 13–17.

8 See ibid. for the diverse readings of Grotius's theory. See also Lauterpacht's exasperation over the different readings of his day in Lauterpacht, supra note 7, at 189.

9 See, e.g., Postema, supra note 7.

10 See, e.g., M. D. A. Freeman (ed.), Lloyd's Introduction to Jurisprudence (2001), 108–11; M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, reissue with new epilogue (2005), 47, 55–6, 131–5. An exception is P. Garnsey, Thinking about Property: From Antiquity to the Age of Revolution (2007).

11 See, e.g., H. Grotius, On the Law of War and Peace (1964), 2.2.1, 2.2.2. Although one might assert that Grotius cites everyone for his positions, it is the case that passages from Cicero, and from Cicero to Augustine, were known and used in medieval and early modern education. For his part, Vattel deferred to Cicero's jus gentium on the very first page of the preface to E. de Vattel, The Law of Nations (1863 [1797]), vii.

12 For Grotius's adoption of the myth see Garnsey, supra note 10, at 138–40. For Vitoria's adoption, see Vitoria, ‘On the American Indians’, in Vitoria, Political Writings (1991), 231, at 1.6 (250), 3.8 (290–1). For Pufendorf, see Garnsey, supra note 10, at 141. For Hobbes's adoption, see W. E. Conklin, Invisible Origins of Legal Positivism (2001), 75–6, 80–2, 92. For Locke's adoption, see J. Locke, Second Treatise of Government, ed. C. B. Macpherson (1980), ch. 1, paras. 11, 14; ch 8, para 108. Locke asserts that this primordial condition may have been historically prior to law (ch. 8, paras. 100–112). For Rousseau's adoption, see J. J. Rousseau, ‘A Discourse on the Moral Effects of the Arts and Sciences’, in Rousseau, The Social Contract and Discourses, trans. G. D. H. Cole (1913), 117, at 120; ‘A Discourse on the Origin of Inequality’, ibid., 144, at 154, 158; ‘A Dissertation on the Origin and Foundation of the Inequality of Mankind’, ibid., 160, at 163–76, 187–8. For Kant's adoption see Conklin, supra note 5, at 70 n. 29, 172–5, 153–6. For Hegel's adoption, see ibid., 57–82, 315–16. For H. L. A. Hart's adoption, see Hart, The Concept of Law (1994), 87, 92–6, as examined in Conklin, Invisible Origins, supra, 207–11, 214–15.

13 Unless otherwise stated, all translations from De Officiis are from Cicero, On Duties, ed. M. T. Griffin and E. M. Atkins (1991). All translations from De Republica and De Legibus are taken from Cicero, On the Commonwealth and On the Laws, ed. J. E. G. Zetzel (1999). Translations of all other texts from Cicero are from the Loeb series. Abbreviations of Cicero's works are drawn from the Oxford Classical Dictionary (1996): Cael. = Pro Caelio; Fin. = De Finibus; Inv. = De Inventione Rhetorica; Leg. = De Legibus; Nat. D. = De Natura Deorum; Off. = De Officius; Para. Sto. = Paradoxa Stoicorum; Part. Or. = Partitiones Oratoriae; Prov. Cons. = De Provinciis Consularibus; Rep. = De Republica; Top. = Topica; Tusc. = Tusculanae Disputationes.

14 Cicero, On Duties, supra note 13.

15 Cicero, On Duties, trans. W. Miller (1913).

16 A. A. Schiller, Texts and Commentary for the Study of Roman Law: Mechanisms of Development (1936), Vol. I, 174.

17 Cicero, supra note 15, 339.

18 L. Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (1979 [1911]).

19 P. van Warmelo, An Introduction to the Principles of Roman Civil Law (1976).

20 Schiller, supra note 16, 166–7.

21 Here, Cicero divides laws into civil justice and natural justice (Rep. 3.31). Cicero makes the same distinction in the Laws through the words of Marcus (Leg. 2.13): ‘[l]aw, therefore, is the distinction between just and unjust things, produced in accordance with which human laws are constructed which punish the wicked while defending and protecting the good.’

22 For an example of equity by nature see Off. 3.67.

23 See infra note 25. (Contemporary international law texts frequently adopt this denotation.)

24 I am grateful to Sabine Grebe for bringing this point to my attention.

25 See Gaius, Institutes, 1.1; 3.93; 3.154. W. M. Gordon and O. F. Robinson interpret the jus gentium as ‘law of all peoples’ in order to displace the international law sense of ‘law of nations’ in favour of the commonly accepted private laws of all peoples. See Gordon and Robinson, Institutes of Gaius (1988). International law treatises have picked up this democratic sense of jus gentium, which was unintended by Cicero, for reasons I shall explain in my text below.

26 See also Augustine, City of God against the Pagans, with trans. and ed. R. W. Dyson (1998), 2.21, where Cicero is understood as describing the commonwealth as ‘the property of the people’. See also ibid., 19.21, where Augustine quotes Cicero as explaining that ‘a community of interest’ makes ‘a gathering of men’ into a ‘people’.

27 Postema, supra note 7.

28 E.g., time must lapse for a custom to be binding (Inv. 2.22.67). A custom must also be publicly approved.

29 Seneca, ‘On the Private Life’, in Seneca, Moral and Political Essays, ed. John M. Cooper and J. F. Procopé (1995), 165–80, Pref 4(1) at 172.

30 Equity and good faith are the two important doctrines in the law relating to how the praetor peregrinus dealt with foreigners.

31 That said, Cicero admits that the performance of such duties does not harm one's own interests (Off. 1.52).

32 Augustine, supra note 26, 19.21, at 951.

33 Gaius, Institutes 1.52, supra note 25.

34 Ibid., 1.53.

35 Barcelona Traction, supra note 3.

36 See, e.g., Cicero's description of such a situation when M. Marius Gratidianus sold a house to G. Sergius Orata (Off. 3. 67).

37 Garnsey, supra note 10, 114–15.

38 W. E. Conklin, ‘The International Community of Peremptory Norms’ (under review). For an explanation concerning the exclusionary character of contemporary international law and for the hint of a more inclusive approach, see Conklin, , ‘A Phenomenological Theory of the Human Rights of the Alien’, (2006) 13 Ethical Perspectives 411–67CrossRefGoogle Scholar; and Conklin, , ‘Statelessness and Bernhard Waldenfels’ Phenomenology of the Alien’, (2007) 38 British Journal of Phenomenology 280CrossRefGoogle Scholar.

39 See, e.g., supra note 10.