Abstract:
The concept of customary international law, although differently formulated, is already present in early modern European debates on natural law and the law of nations. However, no scholarly monograph has, until now, addressed the relationship between custom and the European natural law and ius gentium tradition. This book tells that neglected story, and offers a solid conceptual framework to contextualize and understand the 'problematic of custom', namely how to identify its normative content. Natural law doctrines, and the different ways in which they help construct human reason, provided custom with such normative content. This normative content consists of a set of fundamental moral values that help identify the status of custom as either a fundamental feature or an original source of ius gentium. This book explores what cultural values and practices facilitated the emergence of custom and rendered it into as a source of the law of nations, and how they did so. Two crucial issues form the core of the book's analysis. Firstly, it qualifies the nature of the interrelation between natural law and ius gentium, explaining why it matters in relation to our understanding of the idea of custom. Second, the book claims that the process of custom formation as a source of law calls into question the role of the authority of history. The interpretation of the past through this approach can thus be described as one of 'invention'.
Table of contents:
Introduction: The 'Problematic' of Custom in the Natural Law and Ius Gentium Tradition
Part I. Custom, Conscience, and Natural Law
1:The Problematic of Custom in Roman and Canon Law
2:'Like Beginners in Arabic'. Custom and Reason in Francisco de Vitoria's Doctrine of Ius Gentium
3:Obligation through Agreement, Agreement on Obligation: Customary Ius Gentium as Expression of Will in Francisco Suárez
Part II. Rhetoric and Humanism: Historicizing Custom
4:Custom as Historiography: Alberico Gentili
5:A Literary History of Custom: Hugo Grotius
Part III. The 'Birth' of Customary Ius Gentium as an Independent Legal Regime
6:A Turn Inward: the Europeanization of Customary Ius Gentium
7:Custom in Concentric Circles: Samuel Pufendorf's Customary Ius Gentium between Glory and State Interests
8:Christian Wolff and his Ius Gentium Consuetudinarium
9:Vattel's Doctrine of Customary Law of Nations
Conclusion
Appendix
On the author:
Francesca Iurlaro is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law. She holds a PhD in Law from the European University Institute in Florence (2018). She graduated in the history of philosphy (University of Macerata, 2014) and has an LLM in Comparative, European and International Laws (European University Institute, 2015). She was a Global Postdoctoral Fellow at NYU School of Law (2019-2020). Her research interests include international legal thought, history of political thought, history and reception of natural law theories, law and literature, food ethics, and animal rights. In 2012 she was awarded the Alberico Gentili Prize for her Italian translation of and introduction to Alberico Gentili's Lectionis Virgilianae Variae Liber ad Robertum filium, a less-known commentary of Virgil's Eclogues published by the famous Italian jurist in 1603.
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