The Old Regime period in which war proved the norm and peace the exception witnessed the development of the modern law of nations. Questions of international law assumed a new urgency as did the status of diplomatic agents. By this time the existence of permanent embassies could still be deplored but no longer questioned, and diplomatic immunity could not be disputed, reinforced as it was by a body of precedent and tradition. This period witnessed first the expansion and later the contraction of diplomatic privilege. European aristocratic society reinforced diplomatic privilege, for the status of the ambassador was inextricably intertwined with that of the ruler. The explosive expansion of diplomats and their staff led many theorists, such as Grotius and Vattel, to analyse the evolving conventions, such as the importance of the civil immunity of the ambassador and the liability of the embassy staff. Practice tended to reinforce privileges identified as personal, that is, attached to the ambassador himself. Of these the exemption from criminal liability was perhaps the most important. Among territorially defined privileges, the right of asylum and the notorious right of quarter were first expanded and later either limited or eliminated.

This chapter is a survey of the legal languages used to govern territory, sovereignty and the right of a ruler within a polity. Debates were heavily dominated by feudal and private law-concepts. Sovereigns maintained the diversity of privileges in the territories ruled in the setting of a composite monarchy. Claims and titles could or could not entail consequences for sovereignty. Reservations and exceptions to full internal sovereignty were not uncommon. Succession quarrels (often causes of war), could be solved by treaty, often in conflict with domestic constitutional rules and principles. Mixed polities (Poland-Lithuania, Holy Roman Empire) offered a broad range of argumentative topoi to either confirm or combat overlordship. Internal German questions could quickly escalate to the field of the law of nations through the game of alliances and guarantees. Although republican forms of monarchy and republican oligarchies were on the decline in the seventeenth and eighteenth centuries, their legal agency was not contested. In extra-European dominions of European sovereigns, the chain of reasoning was significantly lighter, as feudal arguments rarely came into play. Conversely, the agency of subaltern actors in establishing boundaries, or the treatment of native Americans as either allies or subjects provide original avenues of research.

This chapter charts the profound transformations undergone by diplomacy, both secular and papal, in an age of dramatic intellectual, political and military upheaval. Considering both scholarship and practice, the chapter assesses the rise of ‘resident diplomacy’ and highlights the new structures that were put in place in order to manage longer missions. The investigation of the right to send ambassadors reveals persistent traits of pluralism in early modern Europe, while the plurality of diplomatic envoys and roles is taken into account to make the complexity of the notion of diplomatic status more apparent: this status, in fact, cannot be reduced to that of a fully fledged ambassador exclusively committed to the object of their official mission. Information-gathering, negotiation and mediation are singled out as the most significant diplomatic functions. Changes in the conception of diplomatic inviolability and immunity are also considered, and include the emergence of the idea of extraterritoriality concerning both the person of the ambassador and diplomatic premises.

The sixteenth and early seventeenth centuries marked a deep crisis of the international political and legal order of Europe, caused by the Reformation, the emergence of some strong composite monarchies and the discovery of the New World. The chapter maps how the law of nations began to emerge as a new paradigm for the governance of Europe under whose wings rulers, diplomats and scholars attempted to advance claims to an exclusive jurisdiction over international relations by sovereign princes and republics. As such, the ‘law of nations’ functioned as a lever, an argument for power in a period of great clashes between centralising governments, opposing confessions, and regional and local elites, rather than representing a reality. The ultimate success by governments in several important states at the end of the Renaissance was facilitated to a great extent by the patrimonial and transactional nature of the states that allowed to include old, autonomous powers in the machinery of state.

In the great treatises of Gentili and Grotius, the law regulating the ending of war and the restoration were discussed as the third, chronological and logical part of the laws of war. Their conceptualisation of peace was premised on their conceptualisation of war either as an instrument for the vindication of justice or as the settlement of disputes about right. The chapter explains how these theories, and in particular the latter conception, reflected the practices of peacemaking in peace treaties well, focusing on such major issues as the temporal and spatial dimensions of peace, territorial disputes and the place of communitarian interests in a logic that was geared towards the settlement and appeasement of bilateral disputes over dynastic rights.

By the middle of the seventeenth century, a category of sovereign princes and polities had succeeded in monopolising jurisdiction over external relations and the internal machinery of government that allows to speak of sovereign state. The Old Regime saw the further emergence, in governmental and diplomatic practice as well as in learned writings of the paradigm of the law of nations as the preserve of sovereigns. As legal practice and literature, it also expanded in scope and mass to new regulatory fields such as the law of the sea, maritime warfare, neutrality or dispute settlement. The great treatises on the law of nations of the middle of the eighteenth century fleshed out the dualist system of law of nature and of nations that formed one of the intellectual backbones to Grotius’ work into an elaborate framework of the governance of international relations inside Christian Europe and for its imperial expansion outside.

This title explores the foundational theoretical aspects of international human rights law, delving into the philosophical underpinnings and conceptual frameworks that shape our understanding of human rights. It examines the historical evolution of human rights ideas, the influence of various philosophical traditions, and the ongoing debates about the nature and universality of human rights. This section also addresses the epistemological ruptures between philosophy and law, and between law and justice, highlighting the challenges in reconciling these perspectives within a coherent human rights framework. It discusses the contributions of different schools of thought, such as natural law, positivism, and sociological approaches, to the development of human rights theory. By critically analyzing these theoretical foundations, this title aims to provide a deeper understanding of the principles and values that underpin international human rights law and to highlight the complexities and nuances involved in defining and protecting human rights in diverse cultural and legal contexts.

Judicial decisions play a crucial role in the development of international human rights law. This chapter discusses the absence of a formal rule of precedent, the principle of legal certainty, and the influence of international judicial decisions on the human rights framework. It examines how judicial decisions from international, regional, and domestic courts contribute to the development and interpretation of human rights norms. The chapter also discusses the challenges and limitations of relying on judicial decisions as a primary source of human rights law, including issues of consistency, coherence, and legitimacy. It highlights the importance of judicial decisions in shaping human rights law and the need for a balanced approach to ensure legal certainty and predictability.

This chapter outlines the new landscape of judicial discretion in the settlement era, referring to both critical claims of law and advanced perspectives on conflict resolution. It integrates theoretical claims as to the notion of law and legal formalism together with advanced approaches to conflict resolution. It suggests a new model for judicial discretion and provides a theoretical framework to combine the principles of conflict resolution and law as they pertain to the judicial role. In addition, it shows how judges may exercise their discretion in the courtroom (rather than through a judicial verdict). We then entwine our theories and findings, constructing a training scheme suggested for judges, which integrates conflict resolution perspectives as well as normative and ethical considerations.

As the 1978–1979 revolution approached, Khomeini’s reactionary conceptions of the ideal social order were all but forgotten. The popular assumption was that Khomeini and, along with him, the rest of the clerical establishment were “revolutionary” in the true sense of the word. But the clerical establishment, which had long been divided among itself, had engaged in little innovation of any kind, either on its own or through the institution of the howzeh. Equally valuable for the victors of the revolution has been the howzeh, a hallowed institution of religious teaching and learning for the better part of a century. For nearly as long, it has been a bastion of jurisprudential traditionalism. Khomeini saw it as archaic. Two decades later, Khamenei extended the state’s capture to the howzeh, bureaucratized it, ensured its financial dependence, and, through added administrative units, made it a practical extension of the state. If the howzeh was ever a forum for jurisprudential innovation, that rare possibility is even rarer now. Not surprisingly, what jurisprudential innovation has taken place, by Khomeini and by successive generations of religious scholars, has been overwhelmingly outside of the howzeh.

Khomeini’s arguments were foundational to the Islamic Republic. The significance of his jurisprudential contributions and innovations cannot be overstated. For the first time, he theorized about direct rule by a faqih. He revolutionized the position of velayat-e faqih by taking it out of the social and cultural realms only and planting it firmly in the domain of politics. First, he made the velayat-e faqih a political supervisor, then a ruler, and finally an absolute ruler. Khomeini gave the absolute ruler the authority to issue injunctions that superseded the injunctions of religion if necessary and empowered him to decide on what was expedient and in the interest of the greater good. These ideas continue to remain foundational to the Islamic Republic. Today, Khomeini the ruler has been all but forgotten. His portraits continue to adorn government buildings, his mausoleum is a frequent stop for visiting dignitaries, and his legacy is duly praised on official occasions and in state ceremonies. But the state has long moved on from what one scholar aptly called “Khomeinism.” From the 1990s on, it has been “Khameneism” that has ruled Iran politically and jurisprudentially, with its own conceptions of velayat-e faqih.

In today’s Iran, state–religion relations exhibit three key features. An obvious feature is the deep basis of the state in innovative interpretations of Shia jurisprudence. The Islamic Republic is based on the system of the velayat-e faqih, generally translated in English as the “guardianship of the jurisconsult.” As a concept, the notion of the velayat-e faqih had existed in Shia thought for some time before Ayatollah Khomeini elaborated on it in his 1970 book by the same name. Khomeini’s contribution lay in his innovative interpretation of the velayat-e faqih as a supreme political leader who oversaw not just religious affairs, as previous theologians had theorized but was in overall charge of all affairs of the entire community, profane and political as well as religious. Today, Khomeini’s conception of velayat-e faqih underlies the institutional and political foundations of the Islamic Republic. The Iranian political system is far more ideologically informed, and hence ideological, than may at first meet the eye.