val tradition the geographical universality of ius gentiumwas stressed and used as an argument to endowius gentiumwith philosophical universality, thus elevating it above the mundane status of a synthesis of different positive legal systems of law and thereby directing attention to ius gentiumas a universal system of law intrinsically rational in the same manner as ius naturale.71 In comparison with Roman legal theory and law, the 16th Century definition of ius gentium demonstrated the theoretical confusion regarding the nature and relationship of ius naturale and ius gentiumcharacteristic of the age.This is the case especially since the late Scholastics and Hugo Grotius redefined ius gentium, from being a synthesis of the different national systems of private law, into a system of public interstate law.72 This is a confusion that continued well into the 20th Century.73 From a modern perspective, what is particularly apparent is the 16th Century emphasis upon the ethico-religious correctness of the material rules of natural law.74 In contrast with natural law, positive law was valid as a matter of fact rather than as a matter of reason.Theoretically speaking, positive law still relied on its correspondence to natural law for legitimacy and validity, insofar as theory held that positive law could only claim validity and exert binding power over men if its rules were metaphysically just, correct, and expedient.75 An interesting aspect of the doctrine of sources was that, in contrast with modern doctrine, it held that customary law could base its validity more upon expediency, reason, and correspondence to natural law than conformity to the legislator’s will.Theoretically, legislation had to conform to customary law for its validity a ca l l f o r s c i e n t i f i c p u r i t y 581 71 Cf., e.g.,Verdross, Abendl. Rechtsph., pp. 85-88; Schröder, Recht alsWissenschaft, pp. 9-11. 72 Nussbaum, A Concise History of the Law of Nations, pp. 52-125.About the confusion, on Swedish soil, between natural law, Roman law, Swedish law, and ius gentium see, e.g., Lindberg, Naturrätten i Uppsala 1655-1720, pp. 172-179. 73 See, e.g., Nussbaum, A Concise History of the Law of Nations, pp. 52-125; Harris, Legal Philosophies, p. 11. 74 Schröder, Recht alsWissenschaft, pp. 11-12. 75 Ibid., pp. 12-15.
RkJQdWJsaXNoZXIy MjYyNDk=