CONSTITUTIONAL INTERPRETATION:
THE FIRST INTERNATIONAL LAWYERS

 

In August 1584 four Japanese emissaries arrived in Lisbon and immediately generated enormous excitement. In the following weeks they were conducted to the court of Philip II and then to Pisa, Florence, Venice, and finally Rome, where they were entertained by the Pope. At each of these places the Japanese were greeted with enormous pomp and lavish ceremonies in which the visitors were presented to the public. Contemporary accounts dwell on the great crowds that greeted them on their arrival in each large city. In Rome, where the Japanese were preceded by the entire papal cavalry, the Swiss guard, and musicians playing drums and trumpets, “the streets, the windows, the doors and even the piazze where they had to pass were full of men of every type and condition.”13

The visitors created a sensation, but these four young men were not the first Japanese to come to Europe. Bernard of Kagoshima, one of Francis Xavier's first Japanese converts, had visited in the 1550s. He, however, had hardly caused a ripple of interest as he traveled through Portugal, Spain, and Italy. Contemporary sources suggest that he was allowed to visit various well-placed officials, possibly even the pope, but no great crowds and no retinues of bureaucrats and retainers greeted him; no state dinners honored him and no letters or treatises made him the subject of discussion among large circles of Europeans.

“What had changed in the decades since Bernard's visit?” asked one historian, and she concluded that it was

not that Europeans had become more curious about outsiders but that [politics] had changed…. In the 1550s the pope and emperor had been battling heretics within Europe. But after the Treaty of Cateau Cambre-sis, the Peace of Augsburg and the Council of Trent had drawn the confessional and political lines more clearly within Europe, both Philip II and the pope could turn their attention to extending their powers outside.14

 

And so it was: the definition of what counted as a possible solution to the problems of dynastic aggrandizement and religious counterrevolution, the same problems with which Charles V had had to deal, had fundamentally changed.

In the following section, we will examine the defining legal form of the new society of princely states in Europe by looking at the works of the first international lawyers. Had Charles V achieved his goals, had the Peace of Augsburg ratified an imperial constitutional form of the state instead of the archetype of the princely state, there would have been no international law (as we understand it) and no society of states predicated on the equality of state sovereignty. Every state has law, but only a society of states that recognizes the autonomy of its members can have the kind of legal rules that we call “international law.” When states share a common commitment15 to the maintenance of a common constitutional form that implies autonomy and equality, they have created a constitution for modern public international law.

The following discussion of modern international law belongs therefore to the very beginning of that subject. Four writers typify this period and are usually taken as laying the earliest foundations of the discipline: the Dominican theologian and law professor Francisco de Vitoria, writing on the eve of the Peace of Augsburg; the Jesuit counter-Reformationist Francisco Suarez, attempting to hold the theological line after Augsburg; the military figure Balthazar Ayala, who writes after the Dutch revolt in 1567, which began the movement toward the constitutional archetype of the kingly state, and who struggles to reinforce the princely state; and finally the magisterial Alberico Gentili, whose works already look forward to a new constitutional form and the new society of which it will be the constituent element.