Altwicker on Justice Beyond Borders: Extraterritorial Obligations from Thucydides to Grotius

Tilmann Altwicker, University of Zurich, is publishing Justice Beyond Borders – Extraterritorial Obligations from Thucydides to Grotius in Rechtsphilosophie - Zeitschrift für die Grundlagen des Rechts (RphZ). Here is the abstract.

The article traces the problem of extraterritorial obligations in the early history of ideas, spanning from Thucydides to Grotius. Extraterritorial obligations are defined here as moral obligations of a legitimate authority to perform or not to perform an act vis-à-vis individuals who are not its subjects. The article shows that arguments about justice beyond the border rely on transnational conceptions of the common good. In the early history of ideas concerning extraterritorial obligations, the following questions were central: Can there be a transnational meaning of moral concepts? Are extraterritorial obligations merely negative obligations? Is the extraterritorial pursuit of state interests limited by higher-ranking principles? Under which circumstances is the extraterritorial use of force permitted in order to protect individuals?

Download the article from SSRN at the link.

Weinrib on Ownership, Use, and Exclusivity: The Kantian Approach @UTLaw

Ernest J. Weinrib, University of Toronto Faculty of Law, has published, Ownership, Use, and Exclusivity: The Kantian Approach at 31 Ratio Juris 123 (2018). Here is the abstract.

Ownership combines the owner's right to exclude others from the owned object and the owner's liberty to use that object. This article addresses the relationship between using and excluding, by presenting Grotius's and Kant's classic accounts of ownership. Grotius's approach treats use and exclusivity as separate notions, with the latter evolving out of the former. For Kant, in contrast, use and exclusivity are integrated aspects of ownership as a right within a regime of equal reciprocal freedom. This article offers a Kantian critique of Grotius's account of the original right to use, and then presents Kant's notion of usability as the basis for his integration of use and exclusivity.

The full text is not available from SSRN for download.

Magendanz on the Structure of Religious Violence: Hugo Grotius on Property and Pious War @DougMagendanz

Doug Magendanz, University of Queensland, has published The Structure of Religious Violence: Hugo Grotius on Property and Pious War. Here is the abstract.

Hugo Grotius (1583-1645) is well-known for his defence of just war in The Rights of War and Peace (1625). He is less well-known for his defence of pious war and religious violence. God wants Christians to wage just war against the wicked, he argued, this being part of ‘the whole duty of a Christian solider’. Grotius held that religion presents no barrier to military alliances and commercial trade with heretics, infidels, and pagans. On the contrary, religion is an ideological tool to be used to achieve national prosperity and international justice (Immanuel Kant famously called him a ‘sorry comforter’ of military aggression). Grotius replaced the traditional defence of religious violence (the liberty of the Church) with a new libertarian defence of property rights. Religious war is justified on non-religious grounds, namely the protection of property and the recovery of just compensation for injury and sin. This paper examines Grotius’s defence of pious war, paying special attention to the creditor-debtor relationship as foundational structure of religious violence.

Download the article from SSRN at the link.

Heinze on Sovereign Authority in Shakespearean Political Drama

Eric Heinze, Queen Mary University of London, School of Law, is publishing Foundations of Sovereign Authority: The Example of Shakespearean Political Drama in Shakespeare and Authority (K. Halsey and A. Vine, eds., Palgrave, 2016-17). Here is the abstract.

As post-Renaissance Europe creates modern concepts of statehood and sovereignty, figures like Bodin, Grotius, and Hobbes undertake ‘constructive’, system-building theories of sovereign authority. Dramatists, in the meantime, are de-constructing sovereignty by unsettling the divergent bases of authority and legitimacy claimed for it. Concepts like ‘rule of law’, ‘popular consent’, or ‘natural law’ often serve to characterise rival legitimacy claims, but such concepts’ scope and interrelationships can be vague. This essay proposes a vocabulary and topology of legal and political authority within early modern drama. Two core categories — ‘right’ and ‘duty’ — are introduced to analyse legitimacy claims more precisely. Those, in turn, attach to twin normative claims, identified as legal ‘transcendence’ and legal ‘positivity’. Hence four basic types of legitimacy claims, each constantly defining itself in contrast to the others: ‘transcendent right’, ‘transcendent duty’, ‘positive right’, and ‘positive duty’. As those exercising or seeking power manoeuvre through their various legitimacy claims, they enact the scope and limits of the claims themselves, pointing us towards ‘deconstructive’ theories of sovereign authority.

Download the essay from SSRN at the link.

The Foundations of Hugo Grotius' Ius Naturae et Gentium

Janne Elisabeth Nijman, Amsterdam Center for International Law, University of Amsterdam, is publishing Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium in International Law and Religion (Martti Koskenniemi, Monica Garcia-Salmones, and Paolo Amoroso, eds., International Law and Religion,--). Here is the abstract.

The standard account has it that Hugo Grotius secularised international law by grounding it on human nature. This chapter argues we should not stop at the standard account, but rather should dig deeper and examine the theological anthropology grounding Grotius’ ideas on the law of nature and nations. With some attention for the influence of both (neo-)scepticism and (neo)stoicism in analyses of Grotius’ understanding of human nature and natural law, this chapter examines Grotius’ ideas through the lens of the Christian theological notion of imago Dei – the idea that human beings are different from other animals in that they are created in ‘the image and likeness of God’. The chapter relates the concept of the imago Dei briefly to the early seventeenth-century theological and political debates in the Dutch Republic and discusses the Arminian interpretation of the imago Dei along the lines of three dimensions generally set apart: ontological, teleological (the telos being to reach God, also through others in society), and functional (linked to the function of dominium). This chapter argues that the Arminian imago Dei anthropology is foundational to Grotius’ theory of the law of nature and nations in (at least) three ways along the lines of these three dimensions. The chapter concludes with a few remarks on how a post-skeptical reading of Grotius, through the lens of his imago Dei anthropology, is relevant for the future of international law thinking.

Download the essay from SSRN at the link.

Grotian Rhetoric

John D. Haskell, University of Helsinki, University of London, and International University College of Turin, has published Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism, and the Politics of Restatement and Denial in volume 25 of the Emory International Law Review (2011). Here is the abstract. 

Hugo Grotius (1583-1645) frequently occupies the title, ‘father of international law’. While the origins of professional lineage were a source of professional and personal conflict for jurists in the 19th century, scholars today tend to treat Grotius as either a symbolic marker of changing historical thought, or the symbolic figure of a style or school of global governance. These two contemporary streams of remembrance operate within a dense background of assumptions about the nature and possibilities of the global order, which raise at least three sets of curiosities. First, in light of nuanced scholarship of Grotius’ primary materials in recent decades, what does an emphasis on the actual content of Grotius’ work impart about the character of his times, and through what lens should we organize our understanding (e.g., political, juridical, theological, and so on)? Second, what inspires the almost cyclical (or perhaps more perversely, fetishistic) attraction to Grotius in the fields of international law and politics, and how might this help us better understand both the psychological and structural underpinnings of contemporary practice, or even the nature and trajectory of the profession in a more broad sense? And third, in lieu of any findings, what if any possibility does this attraction to Grotius open up for future strategic, or even imaginative engagement? In sum, what stories does the Grotius rhetoric allow us to tell about the international legal order, and do such stories carry any political, if not personal, impact?

It is these questions that I attempt to grapple with in this paper in the hopes of providing a concise synthesis of the various engagements within the Grotian tradition to better understand the imaginative contours of our contemporary professional vocabularies and reflect on any emancipatory possibilities this might open up. What seems particularly striking is while ever more scholarship exposes a strong empirical dissonance in respect to the memory of Grotius, such representations continue to exercise powerful sway over ongoing discussions about the past, present, and future of global governance. In response, I have organized the paper into three themes, which overlapping in some respects, are nevertheless helpful in parceling out the various approaches and motivations at work in the literature. The first and second sections provide an overview and then a revisionist account of the claims to what might be labeled the turn to ‘the secular’ and ‘liberal tolerance’. In the third section, the paper moves to reflect more broadly upon the implications of this attraction, attempting particularly to deduce some possible motivations for the continuous misreading of Grotius’ actual work. In conclusion, I briefly trace out some initial suggestions about an alternative future towards the legacy of the Grotian tradition, what might be characterized as a shift from a politics of restatement and denial to a politics of truth.

The full text is not available from SSRN.