Exploring connections between private and public law. The contribution of the ius commune to the conceptualisation of diplomatic representation (original) (raw)

Diplomacy, defined as the overall activities of dialogue and political exchanges between political actors, is undoubtedly an institution which has developed networks and made connections. The numerous ambassadors exchanged within Italy from the 12th century on, and the network which originated from this practice, had far-reaching consequences for the development of law, as the spur to the tracing of the first outline of a doctrine of diplomatic representation by ius commune jurists. Although by the end of the 13th-century canon law already contained such a doctrine, which governed papal diplomacy, civilians made no use of it, because the legal standing of the papal legate and that of the secular ambassador were so very different: whereas the first was an agent of government sent by the pope to perform tasks related to territorial administration, the second was an agent with no jurisdiction, empowered only to negotiate or deliver messages. The conception of ambassadorial powers, therefore, did not draw upon the canon law on papal legates, but on the doctrine of private-law agency, thus revealing another connection – this time between different areas of the law, through the transplantation and adaptation of legal concepts from one branch to another. In this paper, I will describe the efforts of late 13th- and 14th-century ius commune jurists to elaborate a doctrine of diplomatic representation from the perspective of the basis and limits of negotiating power; discussing, in particular, a number of issues concerning procuration and the ratification of treaties. In my conclusion, I will present some examples of the crucial role played by this particular conception of diplomatic representation, which stemmed from private law, in the discussion of the topic as a whole, up until the early 19th century. This will also allow us to appreciate the importance of the contribution made by the ius commune to the early-modern scholarship on the status of diplomats.