Stigall on The Rousseau-Portalis Doctrine: French Legal Thought and the Law of War--Parts I and II

Dan E. Stigall, George Washington University Law School; U. S. Department of Justice, has published The Rousseau-Portalis Doctrine: French Legal Thought and the Law of War – Parts I and II as Lieber Institute for Law & Warfare, Articles of War (USMA), GWU Legal Studies Research Paper No. 2025-80. Here is the abstract.

The Rousseau-Portalis Doctrine is the idea that war is a relationship between states rather than individuals and, accordingly, military operations must be conducted exclusively against the enemy forces and not against civilians who do not take an active part in hostilities. Grounded in Grotian thought but enhanced and refined by Enlightenment thinkers, this revolutionary idea has had a significant impact on the law of war over the past two centuries. The doctrine is understood today as a salient component in the undergirding framework of the law of war. This is a two-part series illustrating the impact of French legal thought on the formation of the law of war with a specific focus on the Rousseau-Portalis Doctrine. The first part provides a brief background on Jean-Jacques Rousseau and Jean-Étienne-Marie Portalis, their views on the law of nations, and their ideas that form the substance of the Rousseau-Portalis Doctrine. The second part traces the evolution of that doctrine and discusses its impact on the law of war.

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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.

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Friendship, Imperial Violence, and the Law of Nations

Alecia Simmonds, University of Technology< Sydney, Faculty of Law, has published Friendship, Imperial Violence and the Law of Nations: The Case of Late-Eighteenth Century British Oceania in volume 42 of the Journal of Imperial and Commonwealth History (2014). Here is the abstract. 

This article examines the interrelationship of friendship and violence in European juristic traditions and in British scientific voyaging in Oceania. Drawing upon Roman texts and natural law treatises, it shows how friendship, meaning hospitality and trade, appeared as a right asserted by imperial nations, often with the backing of force. Moving from jurisprudence to imperial practice, this paper examines the coercive elements of cross­-cultural friendship in eighteenth­ century British expansion into Oceania. It suggests that it was in the breach more than the observance that discourses of friendship came to the fore, specifically in resistance to first contact and in accusations of theft. Seen to be motivated by either violent or avaricious passions, theft and native resistance tore the bonds of human sociability asunder. I argue that the significance of friendship was twofold. First, in a context of inter­imperial rivalry, friendship signified native consent in claims of possession over land and thus ensured conformity to legal norms. Second, it promised a system of order governed by norms of affective restraint that could sublimate the passions of natives, voyagers and nations.

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