Pub Date : 2020-06-16DOI: 10.1163/18760759-04101002
Orazio Condorelli
In the framework of the issue of the observance of promises and agreements (De iure belli ac pacis, bk. ii), Grotius discusses the question of whether Christians should be allowed to conclude treaties or alliances (federa) with those who were named infideles in the canonical and theological terminology. The question was ancient: since the early Middle Ages, alliances of Christians with infidels had been labeled as ‘impious’ (impium fedus). Grotius’s solutions are based on the converging traditions of medieval canon law and theology: treaties and alliances with infidels are intrinsically lawful according to natural and positive divine law, although they should be avoided in certain circumstances. Grotius’s concern, however, was not so much to affirm the theoretical lawfulness of the fedus cum infidelibus. The outcome of his argument consists in promoting the cohesion of Christians: he thinks that a joint action of the Christian nations is a moral and juridical obligation in the face of the aggressions caused by the enemies of Christendom.
在遵守承诺和协议(De iure belli ac pacis, bk. ii)问题的框架内，格劳秀斯讨论了基督徒是否应该被允许与那些在规范和神学术语中被称为异教徒的人缔结条约或联盟(federa)的问题。这个问题由来已久:自中世纪早期以来，基督徒与异教徒的联盟就被贴上了“不虔诚”(impium fedus)的标签。格劳修斯的解决方案基于中世纪教会法和神学的融合传统:根据自然和积极的神法，与异教徒的条约和联盟本质上是合法的，尽管在某些情况下应该避免。然而，格劳秀斯所关心的，并不是要肯定fedus and infidelibus在理论上的合法性。他的论点的结果在于促进基督徒的凝聚力:他认为，面对基督教世界的敌人所造成的侵略，基督教国家的联合行动是一种道德和法律义务。
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Pub Date : 2020-06-16DOI: 10.1163/18760759-04101007
M. Somos, Joshua Smeltzer
This article recovers James Brown Scott’s conviction in American exceptionalism, a belief that underlay both his institutional work as well as his understanding of the origins and trajectory of international law. In the first section, we discuss Scott’s interpretation of Hugo Grotius as part of his tactic to make US foreign affairs policies and perspectives more compelling by presenting them as universal. In the second section, we argue that Scott’s writings on the Spanish origins of international law were in fact meant to protect Anglo-American hegemony and US influence in the Americas in the face of rapidly changing geopolitical pressures. In the final section we suggest that Scott’s US exceptionalism is reflected in his use of the United States Constitution and Supreme Court as a model for key international organizations. We conclude that Scott reframed Vitoria not to redress American bias but to enshrine it.
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Pub Date : 2020-06-16DOI: 10.1163/18760759-04101012
J. Spaans
{"title":"Hugo Grotius’ Remonstrantie of 1615. Facsimile, Transliteration, Modern Translations and Analysis, written by David Kromhout and Adri Offenberg","authors":"J. Spaans","doi":"10.1163/18760759-04101012","DOIUrl":"https://doi.org/10.1163/18760759-04101012","url":null,"abstract":"","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760759-04101012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47527930","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-16DOI: 10.1163/18760759-04101005
P. Astorri
Due to its enormous importance, Grotius’s contract doctrine has been extensively investigated by legal historians. This paper seeks to enhance scholarly understanding of this topic by looking at commentaries on De jure belli ac pacis written by German theologians and jurists in the second half of the seventeenth century. The paper focuses on comments concerning promises: the criteria for promises that are binding under natural law; the foundations of the obligation to keep promises; error and duress; and immoral promises. Grotius’s contract doctrine rested on a mélange of sources, both theological and juridical, which were not always consistent. Commentators sought to harmonise them by looking at them from different perspectives: some comments were mainly based on interpretations of ius commune texts, whereas others reflected a moral theological approach. The results drew distinctions (directly or indirectly) between law and moral theology that contributed to the fragmentation of Grotius’s synthesis.
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Pub Date : 2020-06-16DOI: 10.1163/18760759-04101013
Sina Rauschenbach
{"title":"Die politischen Gesetze des Mose: Entstehung und Einflüsse der politia-judaica-Literatur in der Frühen Neuzeit, written by Markus M. Totzeck","authors":"Sina Rauschenbach","doi":"10.1163/18760759-04101013","DOIUrl":"https://doi.org/10.1163/18760759-04101013","url":null,"abstract":"","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760759-04101013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47419351","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-12DOI: 10.1163/18760759-04000007
Gustaaf van Nifterik
In the years 1777–1778 four volumes were published under the title Legal Observations on Several Dark and Until Now Unverified Sections of the Introduction. The volumes were composed by a society of young legal practitioners from The Hague (Netherlands), the most famous among them being Joannes van der Linden. By then Grotius’s Introduction to the Jurisprudence of Holland was still the cornerstone of the law of Holland and around the year 1800 it would become the fundament for attempts to codify this law. Today the Legal Observations can function as entrance to the historical sources of the law of Holland as described by Grotius and developed further after publication of his Introduction.
{"title":"Observations on the Legal Observations","authors":"Gustaaf van Nifterik","doi":"10.1163/18760759-04000007","DOIUrl":"https://doi.org/10.1163/18760759-04000007","url":null,"abstract":"In the years 1777–1778 four volumes were published under the title Legal Observations on Several Dark and Until Now Unverified Sections of the Introduction. The volumes were composed by a society of young legal practitioners from The Hague (Netherlands), the most famous among them being Joannes van der Linden. By then Grotius’s Introduction to the Jurisprudence of Holland was still the cornerstone of the law of Holland and around the year 1800 it would become the fundament for attempts to codify this law. Today the Legal Observations can function as entrance to the historical sources of the law of Holland as described by Grotius and developed further after publication of his Introduction.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760759-04000007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43282249","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-12DOI: 10.1163/18760759-04000008
Joe Sampson
This article focuses on Grotius’s treatment of obligations arising from wrongdoing in his Inleidinge. The work has clear parallels with the natural law formulation of the same topic in De Jure Belli ac Pacis, and this article explores the extent of the similarities. It focuses on points of divergence, suggesting that the theoretical coherence of the natural law approach to obligations arising from wrongdoing was challenged primarily by extant legislative enactments. These provided either for region-specific doctrines, or rules that proved difficult to reconcile with the underlying principles of natural law, especially the primacy of fault. While much of the Inleidinge’s treatment of liability arising from wrongdoing is consonant with Grotius’ approach to the topic in De Jure Belli ac Pacis, these discrete points of dissimilarity serve as a reminder of the limits of theoretical accounts of private law.
{"title":"The Limits of Natural Law: Liability for Wrongdoing in the Inleidinge","authors":"Joe Sampson","doi":"10.1163/18760759-04000008","DOIUrl":"https://doi.org/10.1163/18760759-04000008","url":null,"abstract":"This article focuses on Grotius’s treatment of obligations arising from wrongdoing in his Inleidinge. The work has clear parallels with the natural law formulation of the same topic in De Jure Belli ac Pacis, and this article explores the extent of the similarities. It focuses on points of divergence, suggesting that the theoretical coherence of the natural law approach to obligations arising from wrongdoing was challenged primarily by extant legislative enactments. These provided either for region-specific doctrines, or rules that proved difficult to reconcile with the underlying principles of natural law, especially the primacy of fault. While much of the Inleidinge’s treatment of liability arising from wrongdoing is consonant with Grotius’ approach to the topic in De Jure Belli ac Pacis, these discrete points of dissimilarity serve as a reminder of the limits of theoretical accounts of private law.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760759-04000008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47571614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-12DOI: 10.1163/18760759-04000001
A. Clerici
Willem Van der Muelen (1659–1739), jurist and member of the Dutch urban elite, was the author of a huge and widely read commentary on Hugo Grotius’s De iure belli ac pacis. Defined by the Neapolitan philosopher Giambattista Vico as a simple ‘embellisher’ of Grotius, but in recent times hailed as ‘the Dutch Locke’, Van der Muelen certainly deserves more attention. The essay will focus on the justification of political resistance to the sovereign, a particularly controversial issue both in early-modern political thought and in Grotius himself. I argue that Van der Muelen, far from being a simple ‘embellisher’ of Grotius, adopts a more radical view based on a strong individualistic and utilitarian anthropology, bridging the Scholastic and monarchomach ideas of resistance – to which he is still indebted – with modern natural law jurisprudence. Thus he offers an interesting companion to Locke as well as a source of inspiration for later commentators such as Jean Barbeyrac.
{"title":"An ‘Embellisher’ of Grotius?","authors":"A. Clerici","doi":"10.1163/18760759-04000001","DOIUrl":"https://doi.org/10.1163/18760759-04000001","url":null,"abstract":"Willem Van der Muelen (1659–1739), jurist and member of the Dutch urban elite, was the author of a huge and widely read commentary on Hugo Grotius’s De iure belli ac pacis. Defined by the Neapolitan philosopher Giambattista Vico as a simple ‘embellisher’ of Grotius, but in recent times hailed as ‘the Dutch Locke’, Van der Muelen certainly deserves more attention. The essay will focus on the justification of political resistance to the sovereign, a particularly controversial issue both in early-modern political thought and in Grotius himself. I argue that Van der Muelen, far from being a simple ‘embellisher’ of Grotius, adopts a more radical view based on a strong individualistic and utilitarian anthropology, bridging the Scholastic and monarchomach ideas of resistance – to which he is still indebted – with modern natural law jurisprudence. Thus he offers an interesting companion to Locke as well as a source of inspiration for later commentators such as Jean Barbeyrac.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760759-04000001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42091791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-12DOI: 10.1163/18760759-04000004
L. Glanville
This article expounds the role played by Hugo Grotius in marginalizing positive duties for the protection of vulnerable people beyond the sovereign state. In the sixteenth century, theorists writing within a range of traditions had posited solemn and demanding duties to assist and rescue vulnerable subjects of other rulers from tyranny and persecution. In the early seventeenth century, Grotius explicitly subordinated such duties to the duty to seek the preservation and advantage of one’s own state. He claimed that, while the care of the vulnerable subjects of others was praiseworthy, it was not obligatory. No state was bound to accept trouble or inconvenience for the sake of vulnerable outsiders. Grotius turns out to be less of an exemplar for present day notions of the Responsibility to Protect and other international duties of human protection than he is often said to be.
{"title":"Grotius and the Marginalization of Cosmopolitan Duties","authors":"L. Glanville","doi":"10.1163/18760759-04000004","DOIUrl":"https://doi.org/10.1163/18760759-04000004","url":null,"abstract":"This article expounds the role played by Hugo Grotius in marginalizing positive duties for the protection of vulnerable people beyond the sovereign state. In the sixteenth century, theorists writing within a range of traditions had posited solemn and demanding duties to assist and rescue vulnerable subjects of other rulers from tyranny and persecution. In the early seventeenth century, Grotius explicitly subordinated such duties to the duty to seek the preservation and advantage of one’s own state. He claimed that, while the care of the vulnerable subjects of others was praiseworthy, it was not obligatory. No state was bound to accept trouble or inconvenience for the sake of vulnerable outsiders. Grotius turns out to be less of an exemplar for present day notions of the Responsibility to Protect and other international duties of human protection than he is often said to be.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760759-04000004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46388846","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-12DOI: 10.1163/18760759-04000006
Raphael Ribeiro
Hugo Grotius believed that last wills belonged to the Law of Nature, whereas Samuel Pufendorf argued that testamentary succession was a mere creation of human laws. I argue that Pufendorf’s rejection of the Natural Law origins for wills lacks internal consistency in both his Natural Law system and his proprietary rights theory. Pufendorf even contradicts his own previous claim stating wills are recognised by the Law of Nature as useful to the promotion of social peace. Grotius’s analysis of testaments, on the other hand, brief though it may be, is entirely consistent with his previous arguments: that the Law of Nature can attach itself to human creation; and that a human creation such as testamentary succession belongs to Natural Law when derived from, or when it agrees with, human reason and sociability.
Hugo Grotius认为最后遗嘱属于自然法则，而Samuel Pufendorf则认为遗嘱继承只是人类法则的创造。我认为，普芬多夫对遗嘱自然法起源的否定在他的自然法体系和所有权理论中都缺乏内在的一致性。普芬多夫甚至反驳了他自己之前的说法，即自然法承认遗嘱对促进社会和平有用。另一方面，Grotius对遗嘱的分析虽然简短，但与他之前的论点完全一致：自然法则可以附属于人类创造；人类的创造，如遗嘱继承，如果源于或符合人类的理性和社会性，则属于自然法。
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