Vol. 15 No.5 (May 2005), pp.471-474

PEACE TREATIES AND INTERNATIONAL LAW IN EUROPEAN HISTORY: FROM THE LATE MIDDLE AGES TO WORLD WAR ONE,  by Randall Lesaffer (ed).  NY: Cambridge University Press, 2004. 504pp. Hardback. $130.00/£75.00. ISBN: 0-52-182724-8.

Reviewed by Sanford R. Silverburg, Department of Political Science, Catawba College, Salisbury, NC.  Email: ssilver@catawba.edu

An historical treatment along two dimensions, of the international legal development in western Europe (although the book’s title employs the colloquially regional reference to the entire continent) from the late 15th century to the end of World War One and the diplomatic effort that ended that armed conflict, the Treaty of Versailles (1919) and, according to editor, Randall Lesaffer, “a history of European peace treaty practice” (p.3).  While periodization is, of course, the methodological stock and trade of historians and hence political scientists might quibble with the rationale for either end of the temporal spectrum employed, but it does set out a particular context.

The book results from the collection of papers presented at a vaguely referenced project carried out by the Department of Jurisprudence and Legal History and the Schoodijk Institute of the Tilburg Law Faculty, at Tilburg University, The Netherlands, in March 2001 as a conference on “Peace Treaties and International Law in History.”  Nineteen essays are offered by 16 contributors (for what it is worth, 4 German history professors, 3 German law professors,  2 emeriti German law professors, 2 Dutch history professors, 1 Dutch research fellow, 1 Belgian history professor, 1 Belgian research fellow,  1 French history professor, and 1 Scot law professor) in four parts.  The stated purpose of the collection is to invigorate the interest in the history of international law, which today admits to only one journal and a dearth of recently published material.  The coverage is generally dense with subject matter ranging from recondite to arcane, relying heavily upon ancient materials punctuated by numerous references to any number of treaties without sufficient background to digest their meaning adequately.

Part One provides an overview, presented in chronological order, beginning with the Peace of Lodi (1454) and proceeding to the Treaties of Paris (1919/20).  We learn from Roman law that the concept of peace, pax, is at best imprecise leaving the conclusion to scholarly examination of ancient texts and an etymological examination combined with a required understanding of related grammar.  Roman law evolved into the canon law of the Roman Church and clearly had an impact on western civilization well into the medieval period.  Peace treaties, or at least mutually agreed arrangements among rulers, then later among designated negotiators, show efforts were ratified by rulers.  From the 12th century onward, diplomatic negotiations, it is noted, are enhanced by individuals who had formal [*472] education which by this time had become a professional enterprise.  One interesting chapter focuses on the role of body language in the negotiating process, centering in part on an esoteric examination of the role of the kiss (probably the origin of the mafia’s bacio della morte).

Part Two sets out the political foundations of modern international law by searching for the roots in antiquity of political practice in the Middle Ages and the scholastic underpinnings of the traditions of the time.  Included here, because of the pervasiveness of Christianity and its role in European political development, is a close examination of canon law.  Part Three is far more engaging when contributors write about German international lawyers and the creation of the Hague Conference system and the contributions of Lassa Oppenhem to the current academic study of international law.   We also learn about the 18th and 19th century understanding of the concept of “peace,” particularly as those changes in understanding relate to the evolution of the state system and the growing importance of international organizations.

The penultimate part then looks at what most today date as the beginning of the modern nation-state system, the Peace of Westphalia, and the nexus between Christian Europe and the Muslim East with treaty relationships established by various states in Europe and the Ottoman Empire.  It is in this section that we find some essays that have a more practical, political science disciplinary use than others.  “Westpahia and Roman Law” by Laurens Winkel, for example, is one where more contemporary politically relevant matters of ius gentium and uti possidetis are described.  The notion that the sovereign state miraculously emerged from Westphalia is dismissed, noting that treaties between princes were nothing more than contractual agreements between leaders, not political entities.   Indeed, prior to the Thirty Years War, what we, today, consider as a peace treaty, were essentially princes attempting to follow the notions set out by Saint Augustine, who for Christians began a treatment for the justification for Christians to shed the blood of fellow Christians.  Hence, a peace treaty was to restore the Augustinian quality of peace in the larger Christian community.  Ius commune is the resulting confluence of Roman and canon legal traditions.   In the early 16th century, the medieval legal order collapsed in Europe, primarily because of the Reformation, leaving some kind of a vacuum, ultimately filled by state sovereignty.  At this point, we see the movement from agreements to congresses and third party participation which amounted to a guarantee of adherence to negotiated settlements. A discussion is provided on the relationship of peace treaties and constitutional practice and how important it was to restore commercial relations in a post-conflict period.  Perhaps the most cogent statement is to be found in the essay by Heinhard Steiger who deals with the modern period from the end of the Napoleonic wars to the conclusion of World War One.  The former conflict consolidated a European concept of power establishment, while the latter sought to create a more global political order.  It was in the 20th century, however, that non-European regions finally come into play.  [*473]

A set of conclusions follow, offered by Lesaffer, all of which are instructive: 1) The form of a peace treaty after the establishment of the Westphalian state system was based on the practice of sovereigns in the late 15th, early 16th centuries; 2) the legal concept of ius commune ultimately led to ius gentium; 3) it was the Reformation that reduced the medieval equilibrium of the Latin West and brought about new problems that ius commune simply never addressed, thus losing its presumptive authority; the generally held notion that the Peace of Westphalia is the cornerstone of the nation-state system is challenged, though Lesaffer does not entirely trample on the idea, since it represented the beginning of an evolutionary process; 5) Westphalia, in effect, limited the authority of sovereigns; and 6) Westphalia was not a complete break from the past, although certainly an important milestone.  The end of World War One brought about a new political world order and, arguendo, an emergent legal system and tradition.  Completing the tome is an appendix, in Latin, of the RUBRICA DE PRINCIBUS by Martinus Garatus Laudensis, the famous 15th century Italian canon lawyer.  This work, for those unfamiliar, is one of the key treatises on the law of treaties before the second half of the 17th century.

The focus of the bulk of the material is selected historical developments in those states whose heritage can be traced to Roman and further back to Germanic tribal law, which then becomes the basis of medieval civilization in Europe.  What attention is afforded to non-Christian European sources is a facile concern with the Ottoman Empire whose expansion into Central Europe matched the cultural threat of the Moorish invasion and occupation of Spain and southern France.  There is a problem here, I would argue, namely that as increasingly more pages appear to provide a greater understanding of international law based upon European sources, there is a tendency to glance away from non-European contributions, e.g., Asian,  and diminishes the utility for a comparative legal perspective.

A peace treaty, in effect, is an agreement either to reduce those conditions that lend themselves to escalatory relations and increase the potential for armed conflict, or to remove those same conditions to remediate political harm that occurs because of military violence among states.  While it is difficult to determine the exact nature of “peace,” or perhaps because it is so difficult to do so since lawyers are wont to claim definitio perculosa est, so it is similarly the case in the contemporary political world with regard to the nature of “war.”  Hence, when does one condition end and the other begin?  Recall, if you will, that the American involvement in the Vietnamese civil war ended with an Executive Agreement, and the Persian Gulf War (1990-91) concluded with a UN Security Council Resolution. What is the utility for the political scientist?

This is a book for the serious scholar of medieval and ancient history of law in general and international law in particular.  The required familiarity and appreciation for western European history certainly may find a dismissive bent among many in the political science academy.  Those who can most appreciate the efforts should have some familiarity with lingua latina as well as German. A further serious deficiency for [*474] a book of this type, i.e., an historical overview and evaluation, which should be acknowledged is the lack of a bibliography, especially given the commendable depth of coverage.  The hefty scholarship presented, nevertheless, should garner proper attention, not only for the effort displayed, but also for the opportunity to better understand the contemporary international political environment.

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© Copyright 2005 by the author, Sanford R. Silverburg.