Justice among Nations. A History of International Law - Stephen C. Neff

Of Spiders and Bees 201

is something that is made and not merely (or exclusively) something that is

found.

Making Law

Over the course of time, the pragmatic approach to international law gained
ground over the rationalistic one— a pro cess that would culminate in
nineteenth- century positivism. Wol ff was the last major fi gure to write in
an uncompromisingly rationalist mode. (Not until the Vienna School of the
1920s would there be anything further in this style.) Th ere were many as-
pects of state practice for the pragmatist writers to take stock of. It is unfortu-
nate that there has not (so far) been any major tradition of writing detailed
histories of international law in par tic u lar periods. Th e eigh teenth century
(like all others) would certainly make an interesting study. For the present,
two areas of activity may be given some modest attention, by way of illustra-
tion: treaties of amity and commerce, and maritime law.

Treaties of Amity and Commerce

Th ere is no better illustration of the pro cess by which international law is

built from the bottom up, by conscious state practice, than the network of

treaties of amity and commerce that began to be a common feature of the

Eu ro pe an landscape in about the middle of the seventeenth century. Th ey

were a sort of latter- day successor to the law merchant of the Middle Ages,

in that they were a key mechanism for facilitating international trade. Th ey

also resembled the law merchant in constituting, in eff ect, a transnational

code of law, by virtue of the fact that there was a very high degree of similar-

ity in the contents of these treaties. Th is makes it possible to treat them as a

group.

Th ese treaties of amity and commerce had several important features, of

which four were especially noteworthy. First was the stipulation of a number

of basic rights to be accorded to individuals involved in commercial activi-

ties between the treaty states. Th ese persons were not, of course, themselves

parties to these treaties. Only states were. But they were the benefi ciaries of

the rights set out. Broadly speaking, the two state parties would typically