Jurisdikční imunita, historické perspektivy

Trading State and its jurisdictional immunity are both topics that smell by some kind of modernity. There is, of course, among international jurists, well known Latin maxim of Bartolus de Sassoferrato “non enim una civitas potest facere legem super alteram, quia par in parem non habet imperium”, but then, as if the evolution had ended for at least centuries. Most of authors then refer to the famous decision of the U.S. Supreme Court in which Chief Justice Marshall in 1812 upheld absolute immunity in often cited dictum in The Schooner Exchange v. McFaddon and Moore. There is also famous and very often cited decision of Justice Phillimore in the case Parlement Belge from 1880. In the same way in which both American and British courts partisan absolute immunity, there is common knowledge of decisions in Italy and Belgium from the end of 19th century, in which on the other hand, we can face decline from the concept of absolute immunity. There are well known disputes between learned jurists from the break of centuries and we can find many interesting arguments for and against one or another approach. Our article notices of opinions of renowned lawyers of slightly different period. It confronts opinions of jurists from 19th and 20th century with those of “fathers” and perhaps “grandfathers” of international law. It deals with views of successors of Bartolus and attempts to show how far are arguments used by contemporary lawyers original or where the modern legal doctrine continues in the thinking of its predecessors or in which areas there is still possible to follow quite elaborated arguments of classical lawyers. There was remarkable evolution in opinions as concerns the sovereign or jurisdictional immunities. As we have mentioned it was not the revolution. The law is conservative to some extent and it often plays the role of stabilizing element in the society. What we are trying to show is gradual sorting of arguments submitted by partisans of restricted or unrestricted immunity of the sovereign ruler. The lesson we can get when exploring historical sources is surprisingly great. It concerns not only our narrow topic. As well as today, also in olden writings of Gentili, Zouche, Bynkershoek, Vattel or other authors of pre or post Grotius era, it is possible to discover attempts to find the best, detached answer to this question. We can also trace number of opinions made for purpose or even very apologistical ones. It is obvious that people did not change so much and times we live in can be different thanks to huge and remarkable technical revolution, but people, common features of human behaviour and various social cliché stay pretty same or very similar at least. Besides the ascertation that lawyers behave in the similar way in face to face similar situations for centuries, there are also other curiosities. I did not discover America, but I have reminded to myself what was the level of legal thinking among these early new era lawyers. It is astonishing to learn that not only ancient Roman lawyers were excellent. We can feel strong continuation in the tradition of legal thinking also among jurists of l5th, 16th, 17th and 18th centuries. It was already modern legal thinking that can bear comparison with works of the best authors of our time. Among all arguments we attempt to analyse, though in a very general way, special attention is given to the work of Ch. Wolff. His proposals could not only become guideline, and to be quite successful way of solving the issues connected with jurisdictional immunities even nowadays, but because of its internal coherence or consistence it can become lucid example of legal thinking. As such it can still serve as good example for generations of lawyers.