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.

Rotunda on the Right of Dissent and America's Debt to Herodotus and Thucydides

Ronald D. Rotunda, Chapman University School of Law is publishing The Right of Dissent and America's Debt to Herodotus and Thucydides at 1 Revista Estudos Institucionais (Journal of International Studies) 144 (2015). Here is the abstract.

The United States prides itself as a country that respects free speech, the right of all persons to criticize the government even in times of war. However, it was not always so. The events related to World War I brought the first cases raising free speech issues to the U.S. Supreme Court. While several justices, in particular, Oliver Wendell Holmes, praised free speech, the Court upheld all the Government prosecutions of dissidents. It has taken nearly a century since those cases for the Supreme Court to come full circle and now protect those who criticize the Government in time of war. When the Court changed its views to create the modern protections, it relied on philosophical justifications for free speech that go all the way back to the ancient Greeks, 2,400 years ago. The modern justification for free speech relies on these philosophers from ancient Greece. There is little new under the sun. While governments typically believe that, for the public good, they must censor speech and squelch dissenters in time of war, the Greeks believed that their free speech made them stronger, not weaker. There are those who argue it is more difficult for a democracy to go to war because it cannot conduct the war successfully if the people oppose it and dissenters remain free to criticize. That is a good thing, not a bad thing. In modern times, no democracy has warred against another. As Pericles reminds us, “[t]he great impediment to action is, in our opinion, not discussion, but the want of knowledge that is gained by discussion preparatory to action.” As other countries embrace democracy and protections for dissidents, our increased freedoms should bring us more peace and less war. 

Download the article from SSRN at the link. Cross-posted to Media Law Prof Blog.

More On Thucydides, Law, and History

Darien Shanske, University of California, Hastings College of the Law, has published Thucydides and Law: A Response to Leiter. Here is the abstract.

Thucydides is the author of the most harrowing account of societal breakdown in antiquity. Brian Leiter has recently made the provocative claim that Thucydides’s analysis of such breakdowns indicates that morality is of little import in guiding behavior, including legal behavior. Yet Thucydides also narrates events, particularly in Athens, which indicate that something resembling morality can continue to guide action, including legal action, even at the worst of times. Thucydides provides tantalizing clues as to why he narrates events that only sometimes follow the path predicted by Leiter. In particular, Thucydides (accurately) portrays the law that suffuses Athenian life and saves Athens itself as, for the most part, informal and infused with moral concerns. Leiter’s reading of Thucydides is therefore not only limited, but misses implicit arguments that challenge Leiter’s larger realist project.

Download the paper from SSRN at the link. 

Thucydides and Law

Darien Shanske, University of California Hastings College of the Law, has published Thucydides and Lawfulness, in Thucydides--A Violent Teacher? History and Its Representations (Georg Rechenauer & Vassiliki Pothou eds; 2011). Here is the abstract.

For the classical Athenians, legitimate law is public and yet usually arises from no person in particular, with the rule-proving exception being the laws that emerge from famous (and often mythical) lawgivers such as Solon. This notion of law that is public, yet indeterminately grounded, though commonly encountered in classical literature (e.g., in the Antigone), is hard to grasp. If the laws of Athens are public and controlled by the demos, both ideas that are central elements of Athenian democratic ideology, then how can it be sensible that the laws often, and often in particularly importance instances, are discussed as having an indistinct provenance? Such a paradoxical notion of law would seem to encourage lawlessness, though in fact what we know about Athens indicates the reverse. The Athenian historian Thucydides provides an exemplary demonstration of the nature of the Athenians’ paradoxical approach to the law. This is surprising. For one thing, Thucydides’ account, like that of other elite authors (like Plato or Aristophanes), seems to emphasize the lawlessness of Athens. Furthermore, at various points Thucydides’ narrative suggests that it is a simple thing to predict when laws will hold and when they will not; in particular, they will not hold in moments of extreme distress. It does not matter if they are ancient or unwritten or public. And yet a close reading of Thucydides demonstrates that lawfulness sometimes obtains even under the worst of circumstances, even and especially in Athens. It may have been surprising to Thucydides, as it seemed to have been to other Athenians and Greeks generally, but in a concrete way the Athenian polis was more resilient and more lawful than perhaps any other (and perhaps precisely because of the intensity of the Athenian attachment to its paradoxical notion of law). This point is easily missed, as there is a lack of an explicit explanation or theoretization of this phenomenon in Thucydides or elsewhere. Moreover, the nature of this insight is not such as to give much comfort or guidance to the would-be political reformer, but the strangeness of this approach only makes it more important.

Download the essay from SSRN at the link.