CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

the benefit of agreeing to abide by certain principles of ‘voluntary law.’ Natural law on
its own, however, cannot provide the objective framework to determine disputes
between states, not least because all parties to such disputes will claim that right is on
their side; there is no independent arbiter of natural law. So it is to voluntary law –
objective and agreed – that we must turn for the regulation of conduct between states.
This is the genesis of public international law as we understand it today.
These pioneers of international law were heavily influenced by Christian morality –
Grotius’ work, for example, is peppered with enjoinders to love one’s enemy, to be
killed rather than kill and so on – but the value of their contribution to the development
of just war doctrine, is in moving it out of the realm of theology and into the secular
field of international relations and law. The value of this is compounded by its
coincidence with the emergence of the modern states system.
When by the Peace of Westphalia a crowd of petty principalities were
recognized as practically independent states, the need of a body of rules to
regulate their relations and intercourse became pressing. Such a code (if one
may call it by that name) Grotius and his successors compiled out of the
principles which they found in the Roman Law, then the private law of
Germanic countries, thus laying the foundation whereon the system of
international jurisprudence has been built up during the last three centuries. 154
However, the Peace of Westphalia can also be seen to mark another departure. The early
Christian scholars, in seeking to reconcile the teachings of the scriptures with the need
for ordered society, set out a view of a community of mankind (The Revolutionist of
Wight’s three voices (See p28)). The likes of Grotius, Pufendorf and Vattel can be seen
to have built on this to develop a concept of a community of states, regulated in their
dealings with one another by international law (the Rationalist voice). However, by
establishing an order which secured a privileged position for states above all else (the
Realist voice), the Peace of Westphalia obscured this:
The opportunity which may have existed at the end of the Thirty Years War for
substituting a new order based on the impersonal supremacy of international law
for the old order based on the personal supremacy of the Empire, was not,
however, utilized. Instead of creating a society of states, the Peace of
Westphalia, while playing lip service to the idea of a Christian commonwealth,
merely ushers in the era of Sovereign Absolutist states which recognized no
superior authority. 155
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