No area of international law has been so little explored by scholars as the history of the subject. is is a remarkable state of a# airs, probably without parallel in any other academic discipline (including other branches of law). Although this intellectual scandal (as it well deserves to be called) is now being remedied, we are still only in the earliest stages of the serious study of international legal history. Many blank spots exist, some of which will be identi, ed in passing in the discussion below.
is short history—inevitably very short history—can give only the most general . avour of the major periods of development of international law. It will accordingly not be possible to give more than the most token attention to developments outside the Western mainstream. Both ideas and State practice will be covered. e ideas chie. y concern what international law was thought to consist of in past times. State practice is concerned 4 stephen c neff
with what States actually did. It was the two in combination—if not always in close harmony—that made international law what it became.
II. ancient worlds
For a vivid indication of how persons from even the most diverse cultures can relate to one another in a peaceful, predictable, and mutually bene, cial fashion, it is di< cult to top Herodotus’s description of ‘silent trading’ between the Carthaginians and an unnamed North African tribe in about the sixth century BC. When the Carthaginians arrived in the tribe’s area by ship, they would unload a pile of goods from their vessels, leave them on the beach and then return to their boats and send a smoke signal. e natives would then come and inspect the goods on their own, leave a pile of gold, and retire. en the Carthaginians would return; and, if satis, ed that the gold represented a fair price, they would take it and depart. If not satis, ed, they would again retire to their ships; and the natives would return to leave more gold. e process would continue until both sides were content, at which point the Carthaginians would sail away with their gold, without a word exchanged between the two groups. ‘ ere is perfect honesty on both sides’, Herodotus assures us, with no problems of theB or con. ict (Herodotus, Histories, p 336). is silent trading arrangement may have been successful in its way, but a process of interaction so in. exibly ritualistic and so narrow in subject matter could hardly su< ce for political interactions between States, even in ancient times. Most people probably have the feeling that something rather more elaborate is required to merit the grand name of ‘international law’. Indeed, the ambiguity of the term ‘international law’ leads to various di# erent answers to the question of when international law ‘began’. If by ‘international law’ is meant merely the ensemble of methods or devices which give an element of predictability to international relations (as in the silent-trading illustration), then the origin may be placed virtually as far back as recorded history itself. If by ‘international law’ is meant a more or less comprehensive substantive code of conduct applying to nations, then the late classical period and Middle Ages was the time of its birth. If ‘international law’ is taken to mean a set of substantive principles applying uniquely to States as such, then the seventeenth century would be the starting time. If ‘international law’ is de, ned as the integration of the world at large into something like a single community under a rule of law, then the nineteenth century would be the earliest date (perhaps a tri. e optimistically). If, , nally, ‘international law’ is understood to mean the enactments and judicial decisions of a world government, then its birth lies (if at all) somewhere in the future—and, in all likelihood, the distant future at that.
If we take the most restricted of these de, nitions, then we could expect to , nd the best evidence for a nascent...