The Law of Nations and The Common Law of Europe: the Case of Edmund Burke

In this chapter, I deal with the issue of how Burke and his early modern predecessors discussed the question of ‘international law’ and its enforcement. As is well known, some of the main jurists of the early modern period such as Vitoria, Gentili and Suárez’ differentiation of the law of nations from the law of nature led to the gradual emergence of the legal principle and moral right of intervention to prevent gross violations of the natural law. Such ideas were refined by Grotius, who largely equated international law with punishment, something Pufendorf and Vattel would later criticise. I argue that it is nevertheless Edmund Burke to whom we must look to bridge the two concerns of international law: authority and enforcement. Burke provided the conceptual scope needed to resolve the issues of enforcement plausibly by prescribing specific common law foundations, binding the legal and the moral in international law and presenting it as domestic law. This way of looking at Burke is under-recognised and provides insight into some of the same concerns that face the international society of states today with regards to the enforcement of international law. In the history of international law, during the long nineteenth century, Burke is somewhat of an early century detour. By emphasising the force of ‘customary international law’ he does not have a strong affinity with nor is he a precursor to the sort of international legal positivism that characterised the later century, where international law was gradually equated with the codification of customary law.