Ius Gentium et Naturae: The Human Conscience and Early Modern International Law

Pamela Slotte, & John Haskell (Eds.), Christianity and International Law: An Introduction Cambridge Law and Christianity). Cambridge University Press, 2021 Forthcoming

Amsterdam Law School Research Paper No. 2020-63

Amsterdam Center for International Law No. 2020-32

ASSER Research Paper 2020-14

21 Pages Posted: 15 Dec 2020

See all articles by Janne Elisabeth Nijman

Janne Elisabeth Nijman

T.M.C. Asser Instituut; Amsterdam Center for International Law - University of Amsterdam; The Graduate Institute of International and Development Studies (IHEID)

Date Written: November 24, 2020

Abstract

This chapter is an intellectual history of ius gentium et naturae for a volume on the relations between international law and Christianities. It examines how various early modern conceptions of conscientia relate to the emergence of ius gentium et naturae in the so-called Age of Conscience. It zooms in on the development of ‘modern’ ius gentium et naturae amidst the early modern fight over the human conscience, in particular through the work of Hugo Grotius.

To start, it introduces the Thomist conception of conscience as ‘forum internum’, which is able to err and thus needs the Church to provide direct guidance and correction. Subsequently, it analyses the role played by this judicial conception of conscience in the work of Spanish Scholastic Francisco de Vitoria when he reconceives ius gentium et naturae as a body of law applicable to Christian and non-Christian peoples. Ius gentium et naturae is thus born within the Roman Catholic tradition and entangled in the institution of confession or in ‘the power of the pastorate’ as Michiel Foucault would coin it. Subsequently, the chapter examines briefly how the Reformations spurred a revisit of the relation between conscience and reason, in the sense of natural law. Tables were turned and reason, or natural law, was argued to be inferior to conscience and faith. The core of of the chapter is a discussion of how Grotius’ conception of the human conscience, which drew on both Thomism and Erasmian humanism, in turn led to a ius gentium et naturae disentangled from Roman Catholic moral theology, doctrine, and practice. For Grotius reason and conscience underpinned a universal law of nature, backed up by a decentralised - internal - court system (‘forum internum’ or ‘forum conscientia’), which was equally operated by Christian, Catholic and Protestant, Gewissener and non-Christian sovereigns and peoples alike.

Today, ‘conscience’ is uncritically assumed, or used explicitly, in international law (eg in the 1998 Rome Statute or the 1948 Universal Declaration of Human Rights) as a natural place of morality and justice. With the human conscience explictly or implicitly underpinning international law comes however a space for politics. As we have seen time and again, while human conscience is the space for humans to apply moral knowledge, it is also the space to err profoundly. Law presupposes its application by the human conscience, and without the latter the very existence of the former becomes unimaginable. The politics that come with the interpretations of the court of conscience, like with any court, requires our unwaning scrutinizing attention.

Keywords: Ius gentium; scholasticism; humanism; natural law; forum internum; conscientia; reason; Erasmus; Foucault; Grotius; Vitoria

JEL Classification: K33

Suggested Citation

Nijman, Janne Elisabeth, Ius Gentium et Naturae: The Human Conscience and Early Modern International Law (November 24, 2020). Pamela Slotte, & John Haskell (Eds.), Christianity and International Law: An Introduction Cambridge Law and Christianity). Cambridge University Press, 2021 Forthcoming, Amsterdam Law School Research Paper No. 2020-63, Amsterdam Center for International Law No. 2020-32, ASSER Research Paper 2020-14, Available at SSRN: https://ssrn.com/abstract=3736751

Janne Elisabeth Nijman (Contact Author)

T.M.C. Asser Instituut ( email )

P.O. Box 30461
2500 GL The Hague, 2517JN
Netherlands

Amsterdam Center for International Law - University of Amsterdam ( email )

Amsterdam
Netherlands

The Graduate Institute of International and Development Studies (IHEID) ( email )

Chemin Eugène-Rigot 2
Geneva, 1202
Switzerland

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