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USE OF LEGAL NORMS IN SOME PREINDUSTRIAL INTERNATIONAL SYSTEMS



A review of preindustrial international systems reveals that legal or ethical norms, backed by religious sanctions, were often considered in organizing actions and transactions between independent political units existing within a common civiliza­tion or culture. In many civilizations, one can find legal or religious principles that established routines to handle (1) communications between the political

 

361 Law and World Opinion in Explanations of Foreign Policy

units (various forms of diplomatic immunity, for example), (2) commercial trans­actions, (3) conduct of warfare, and (4) observance of treaties.1 There is also evidence regarding the lack of legal or religious norms in ordering the relations, between political units of two distinct civilizations or cultures. The laws existing among the political units of one culture were seldom applied in relations with "barbari­ans" beyond the geographical and cultural boundaries of the system. Until the twentieth century, the Europeans, much like the Hindus, Greeks, or Moslems of earlier ages, did not consider that the legal obligations observed in relations with each other could be applied equally in transactions with "savages" or "bar­barians" of entirely different cultures. Classical European international law and its historic analogies seem to have been recognized and commonly observed only within groups of political units that were integrated enough to constitute a real system.

The second point is that there are many analogies between the rules found operating effectively in historical systems and those of modern interna­tional law. Both the reports of explorers and the more recent studies of anthro­pologists have noted the rather sophisticated rules and ceremonies that were associated with economic, diplomatic, and military transactions between tribes, lineage groups, city-states, and ancient empires. Almost all peoples used various forms of treaties—as we do—to secure peace, followed by some kind of cere­mony, ritual, or sacrifice to seal obligations. The sanctions to these treaties were often religious beliefs that those who broke them would die or receive some violent punishment. Economic exchanges were normally consummated according to strict rules, and in many cases, tribes also possessed rules and customs regulating the outbreak and conduct of warfare. Regular observance of these religious restraints helps to explain why, despite frequent wars and violence, many tribes survived for centuries.2

In the ancient Hindu international system, the role of law in ordering transactions between independent units was much less in evidence, and few analogies with modern international law are to be found. Princes and kings recognized neither the concept of a family of sovereign states nor a well-defined body of law.3 Although some vague understandings pertaining to diplomatic immunities and commercial transactions seemed to exist, sovereigns did not faithfully observe them except when they feared serious reprisals. There was so little faith in treaties that the signatories often exchanged hostages as a guaran­tee for compliance. Lack of the most basic rules for transactions in the Hindu system is revealed in a passage of Kautilya's Arthasastra, in which he recommends that a king threatened by a neighboring sovereign invite him to his realm on

1 See, for example, Baron S.A. Korff, "An Introduction to the History of International Law," American Journal of International Law, 18 (1924), 246—59; Bronislaw Malinowski, "An Anthropo­logical Analysis of War," American Journal of Sociology, 46 (1941), 521-50; Rudolf W. Holsti, The Relation of War to the Origin of the Slate (Helsingfors, 1913), pp. 60-70.

2 Holsti, The Relation of War to the Origin of the State, p. 67.

3 Adda Bozeman, "Representative Systems of Public Order Today," American Society of International Law, Proceedings (April 1959), p. 18.

362 Law and World Opinion in Explanations of Foreign Policy

the pretext of attending a festival, wedding, or elephant hunt and then take him prisoner and even slay him.4 War and use of force were accepted as normal activities of the state, whether undertaken for glory, plunder, territory, or cre­ation of vassal states. There grew up later, with the fall of the Mauryan dynasties, a vague principle that certain forms of conquest ("demonaic conquest") involving indiscriminate annihilation and slaughter should be avoided. "Righteous" con­quests to create vassal states were the ideal for which Hindu kings were expected to go to war. Other chronicles from the period claim that there were fairly strict rules governing conduct of warfare. These mention that warriors fighting from chariots could not strike those on foot, wounded enemies could not be slain, and, as a form of arms control, poisoned weapons could not be used.5

 




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