Pub Date : 2021-11-18DOI: 10.1163/18760759-42020001
B. Chimni
The times of Grotius were a period of transition from a feudal to a capitalist order in Europe, ushering in new thinking on subjects such as human nature, commerce, state, war, and colonialism. In articulating his views, Grotius was not seeking to shape the law of nations for all times but to recast it in order to respond to the problems encountered by Holland (or the United Provinces), and more generally European nations, in the ongoing transition. In the backdrop of a brief discussion of the ‘Grotian tradition’, this article distinguishes different uses of the term ‘Grotian Moment’ and contends that ideally the term should be reserved for capturing developments that profoundly impact both the ‘logic of territory’ and the ‘logic of capital’ with the law of nations playing a significant role. While decolonization saw the expansion of the sovereign state system and certainly was a setback to the global accumulation of capital, the law of nations did not pro-actively support that process. Furthermore, efforts by postcolonial nations to bring about the transformation of the colonial legal order did not succeed making less meaningful the characterization of the decolonization process as a ‘Grotian Moment’.
{"title":"The Grotian Tradition, Grotian Moment, and Decolonization: A twail Perspective","authors":"B. Chimni","doi":"10.1163/18760759-42020001","DOIUrl":"https://doi.org/10.1163/18760759-42020001","url":null,"abstract":"\u0000The times of Grotius were a period of transition from a feudal to a capitalist order in Europe, ushering in new thinking on subjects such as human nature, commerce, state, war, and colonialism. In articulating his views, Grotius was not seeking to shape the law of nations for all times but to recast it in order to respond to the problems encountered by Holland (or the United Provinces), and more generally European nations, in the ongoing transition. In the backdrop of a brief discussion of the ‘Grotian tradition’, this article distinguishes different uses of the term ‘Grotian Moment’ and contends that ideally the term should be reserved for capturing developments that profoundly impact both the ‘logic of territory’ and the ‘logic of capital’ with the law of nations playing a significant role. While decolonization saw the expansion of the sovereign state system and certainly was a setback to the global accumulation of capital, the law of nations did not pro-actively support that process. Furthermore, efforts by postcolonial nations to bring about the transformation of the colonial legal order did not succeed making less meaningful the characterization of the decolonization process as a ‘Grotian Moment’.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46353443","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 : 2021-11-18DOI: 10.1163/18760759-42020002
E. J. Corredera
This article contextualises the origins of the term Grotian Moment, coined and frequently redefined by Richard Falk. By generating a conceptual history of the idea and its uses, the article draws attention to the ways that Falk’s sustained interest in the question of temporality and the nature of change in international law can inform present legal debates. The recovery of Falk’s efforts to engage with critics, geopolitical changes, and new legal ideas by reinterpreting and reimagining the meaning of a Grotian Moment sheds light on its relationship to questions of free trade, Eurocentrism, and revolutions in international law. By considering the methodological parallels with the work of Reinhart Koselleck, this article emphasises the importance of both historiographical and historical debates for the study of change in legal history, the analysis of the global legacies of Hugo Grotius, and the generation of expectations of the future in international law.
{"title":"Why International Lawyers Measure Time with a Telescope: Grotian Moments & Richard Falk’s Histories of the Future","authors":"E. J. Corredera","doi":"10.1163/18760759-42020002","DOIUrl":"https://doi.org/10.1163/18760759-42020002","url":null,"abstract":"\u0000This article contextualises the origins of the term Grotian Moment, coined and frequently redefined by Richard Falk. By generating a conceptual history of the idea and its uses, the article draws attention to the ways that Falk’s sustained interest in the question of temporality and the nature of change in international law can inform present legal debates. The recovery of Falk’s efforts to engage with critics, geopolitical changes, and new legal ideas by reinterpreting and reimagining the meaning of a Grotian Moment sheds light on its relationship to questions of free trade, Eurocentrism, and revolutions in international law. By considering the methodological parallels with the work of Reinhart Koselleck, this article emphasises the importance of both historiographical and historical debates for the study of change in legal history, the analysis of the global legacies of Hugo Grotius, and the generation of expectations of the future in international law.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47329414","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 : 2021-07-01DOI: 10.1163/18760759-42010009
Tarik Kochi
{"title":"Martha Nussbaum, The Cosmopolitan Tradition: A Noble But Flawed Ideal","authors":"Tarik Kochi","doi":"10.1163/18760759-42010009","DOIUrl":"https://doi.org/10.1163/18760759-42010009","url":null,"abstract":"","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42880273","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 : 2021-07-01DOI: 10.1163/18760759-42010003
Wouter Druwé
In his ‘Inleidinge tot de Hollantsche Rechtsgeleertheyt’, Hugo Grotius introduced the concept of wrong-by-construction-of-law (‘misdaed door wetsduidinge’), the idea that civil law could assign liability to someone who had not committed any fault, i.e. merely because of his or her ‘capacity’ or ‘quality’ as a parent, as an owner of an animal, as an inhabitant of a building, or as an employer or shipowner. This contribution situates Grotius’s views on qualitative liability within the wider Netherlandish learned juridical context of his time, and especially studies the role of fault (‘culpa’) and presumptions of fault in the learned theories on qualitative liability. Apart from printed treatises and volumes of consilia, this contribution also takes into account hitherto unstudied handwritten lecture notes of the late medieval and early modern university of Leuven.
Hugo Grotius在他的“Inleidinge tot de Hollantsche Rechtsgeertheyt”中引入了法律解释错误的概念（“misdaed door wetsguidinge”），即民法可以将责任分配给没有犯任何过错的人，即仅仅因为他或她作为父母、动物主人、建筑物居民的“能力”或“素质”，或作为雇主或船东。这一贡献将Grotius关于定性责任的观点置于他那个时代更广泛的荷兰法学背景下，特别是研究了过错（“过失”）和过错推定在定性责任理论中的作用。除了印刷论文和consilia卷外，这一贡献还考虑到了迄今为止未经研究的中世纪晚期和现代早期鲁汶大学的手写讲义。
{"title":"Qualitative Liability in the Early Modern Low Countries (ca. 1425–1650)","authors":"Wouter Druwé","doi":"10.1163/18760759-42010003","DOIUrl":"https://doi.org/10.1163/18760759-42010003","url":null,"abstract":"\u0000In his ‘Inleidinge tot de Hollantsche Rechtsgeleertheyt’, Hugo Grotius introduced the concept of wrong-by-construction-of-law (‘misdaed door wetsduidinge’), the idea that civil law could assign liability to someone who had not committed any fault, i.e. merely because of his or her ‘capacity’ or ‘quality’ as a parent, as an owner of an animal, as an inhabitant of a building, or as an employer or shipowner. This contribution situates Grotius’s views on qualitative liability within the wider Netherlandish learned juridical context of his time, and especially studies the role of fault (‘culpa’) and presumptions of fault in the learned theories on qualitative liability. Apart from printed treatises and volumes of consilia, this contribution also takes into account hitherto unstudied handwritten lecture notes of the late medieval and early modern university of Leuven.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46826940","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 : 2021-07-01DOI: 10.1163/18760759-42010002
J. Gordley
In Roman law, as interpreted by the medieval jurists, in a gratuitous loan (commodatum), the borrower was liable for culpa levissima, failure to use be as diligent as “most diligent” (diligentissimus). It would seem, then, that a person could be liable for conduct that he could not help. That consequence troubled the medieval canonists a person would then be liable who had not sinned. It troubled the late scholastics because a person would then be liable for an accident, which was not a violation of commutative justice. Some concluded that liability for culpa levissima was a creature of positive law, based on pragmatic considerations but with no grounding in principle. There was another explanation glimpsed by the late scholastics and by Hugo Grotius: commutative justice requires that one who borrows gratuitously indemnify the lender against any loss. Unfortunately, in the following centuries, that explanation was lost from sight.
{"title":"Culpa Levissima and the Eclipse of Strict Liability","authors":"J. Gordley","doi":"10.1163/18760759-42010002","DOIUrl":"https://doi.org/10.1163/18760759-42010002","url":null,"abstract":"\u0000In Roman law, as interpreted by the medieval jurists, in a gratuitous loan (commodatum), the borrower was liable for culpa levissima, failure to use be as diligent as “most diligent” (diligentissimus). It would seem, then, that a person could be liable for conduct that he could not help. That consequence troubled the medieval canonists a person would then be liable who had not sinned. It troubled the late scholastics because a person would then be liable for an accident, which was not a violation of commutative justice. Some concluded that liability for culpa levissima was a creature of positive law, based on pragmatic considerations but with no grounding in principle. There was another explanation glimpsed by the late scholastics and by Hugo Grotius: commutative justice requires that one who borrows gratuitously indemnify the lender against any loss. Unfortunately, in the following centuries, that explanation was lost from sight.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44168980","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 : 2021-07-01DOI: 10.1163/18760759-42010001
B. Wauters
Present-day scholarship on the law of delicts (or the law of torts) can be broadly divided into two ‘camps’.1 The first group of theorists manages a consequentialist conception: the system of delictual liability is modelled in view of the consequences it yields. Since the work of Ronald Coase, Guido Calabresi, and Richard Posner, these consequences are often seen in economic terms. The costs of accidents are externalities; the prevention of those externalities also leads to costs. It is the role of the law of delicts to force injurers and victims to take these costs into account and/or allow them to adjust their level of behav-ioural activity. The overall result is wealth maximisation. The second group of theorists favours a non-consequentialist or ‘moral’ approach. This is not to say that an economic analysis is not ‘moral’; there is a sense in which wealth maximisation is the embodiment of the moral requirement of putting resources to their highest use. At the very least, as Posner emphasises, wealth maximisation is perfectly consistent with most influential moral systems.2 Rather, the ‘moral’ or non-consequentialist approach starts the analysis from the general idea that wrongdoing or unjustified conduct underlies liability.3 Strict liability is easily incorporated into a consequentialist or economic conception as it builds upon the kind of cost-benefit analysis the Learned Hand
{"title":"Historical, Philosophical, and Legal Foundations of Strict Liability in Hugo Grotius—Some Introductory Remarks to the Special Dossier","authors":"B. Wauters","doi":"10.1163/18760759-42010001","DOIUrl":"https://doi.org/10.1163/18760759-42010001","url":null,"abstract":"Present-day scholarship on the law of delicts (or the law of torts) can be broadly divided into two ‘camps’.1 The first group of theorists manages a consequentialist conception: the system of delictual liability is modelled in view of the consequences it yields. Since the work of Ronald Coase, Guido Calabresi, and Richard Posner, these consequences are often seen in economic terms. The costs of accidents are externalities; the prevention of those externalities also leads to costs. It is the role of the law of delicts to force injurers and victims to take these costs into account and/or allow them to adjust their level of behav-ioural activity. The overall result is wealth maximisation. The second group of theorists favours a non-consequentialist or ‘moral’ approach. This is not to say that an economic analysis is not ‘moral’; there is a sense in which wealth maximisation is the embodiment of the moral requirement of putting resources to their highest use. At the very least, as Posner emphasises, wealth maximisation is perfectly consistent with most influential moral systems.2 Rather, the ‘moral’ or non-consequentialist approach starts the analysis from the general idea that wrongdoing or unjustified conduct underlies liability.3 Strict liability is easily incorporated into a consequentialist or economic conception as it builds upon the kind of cost-benefit analysis the Learned Hand","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43007772","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 : 2021-07-01DOI: 10.1163/18760759-42010008
E. J. Corredera
The early Spanish Enlightenment was shaped by debates over corporations, sovereignty, and the balance of power in Europe. Spanish officials, in this context, turned to the ideas of Hugo Grotius to establish joint-stock companies that could allow the Crown to regain control over its imperial domains and establish perpetual peace in Europe. This article recovers the writings of Félix Fernando de Sotomayor, Duke of Sotomayor (1684–1767), who drew on the works of Grotius, Samuel Pufendorf, and Charles Dutot in order to show that the history of these corporations chronicled the contestation and erosion of Spanish power and the diversion of European states from their true interests. Sovereigns, not merchants, argued Sotomayor, could guarantee fair trade and the equitable distribution of wealth. The study of Sotomayor’s views on trade, natural law, and alienation challenges traditional interpretations about the Iberian engagement with Grotius, the rise of capitalist hopes in Southern and Northern Europe, and Spain’s investment in the Enlightenment.
{"title":"The History of Fair Trade: Hugo Grotius, Corporations, and the Spanish Enlightenment","authors":"E. J. Corredera","doi":"10.1163/18760759-42010008","DOIUrl":"https://doi.org/10.1163/18760759-42010008","url":null,"abstract":"\u0000The early Spanish Enlightenment was shaped by debates over corporations, sovereignty, and the balance of power in Europe. Spanish officials, in this context, turned to the ideas of Hugo Grotius to establish joint-stock companies that could allow the Crown to regain control over its imperial domains and establish perpetual peace in Europe. This article recovers the writings of Félix Fernando de Sotomayor, Duke of Sotomayor (1684–1767), who drew on the works of Grotius, Samuel Pufendorf, and Charles Dutot in order to show that the history of these corporations chronicled the contestation and erosion of Spanish power and the diversion of European states from their true interests. Sovereigns, not merchants, argued Sotomayor, could guarantee fair trade and the equitable distribution of wealth. The study of Sotomayor’s views on trade, natural law, and alienation challenges traditional interpretations about the Iberian engagement with Grotius, the rise of capitalist hopes in Southern and Northern Europe, and Spain’s investment in the Enlightenment.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45251296","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 : 2021-07-01DOI: 10.1163/18760759-42010004
Joe Sampson
This article compares Grotius’s treatments of liability for wrongdoing in natural law and the law of Holland to emphasise the conceptual centrality of fault in both, and places Grotius’s analyses in their historical context by tracing the treatment of strict liability in those intellectual traditions upon which he drew. It focuses in particular on the formulation of obligations quasi ex maleficio to show how the absence of fault rendered the obligation something other than delictual.
{"title":"The Place of Fault in Grotius’s Conception of Liability for Wrongdoing","authors":"Joe Sampson","doi":"10.1163/18760759-42010004","DOIUrl":"https://doi.org/10.1163/18760759-42010004","url":null,"abstract":"\u0000This article compares Grotius’s treatments of liability for wrongdoing in natural law and the law of Holland to emphasise the conceptual centrality of fault in both, and places Grotius’s analyses in their historical context by tracing the treatment of strict liability in those intellectual traditions upon which he drew. It focuses in particular on the formulation of obligations quasi ex maleficio to show how the absence of fault rendered the obligation something other than delictual.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47598175","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 : 2021-07-01DOI: 10.1163/18760759-42010005
B. Wauters
This article compares the views of Grotius and subsequent authors on the doctrines of necessity and strict liability. This comparison takes place at two levels. On the one hand, there is a comparison of the views of Grotius with those of Pufendorf, Smith, Kant and recent Kantian authors. On the other hand, there is a comparison between the doctrines of necessity and strict liability. This exercise leads to the conclusion that strict liability does not have to be a mere matter of choice opted for by positive law, but in some instances can also be thought of as a requirement of a private law framework expressing the fundamental moral equal freedom of man.
{"title":"Strict Liability and Necessity in Grotius, Pufendorf, Smith, Kant, and Beyond","authors":"B. Wauters","doi":"10.1163/18760759-42010005","DOIUrl":"https://doi.org/10.1163/18760759-42010005","url":null,"abstract":"\u0000This article compares the views of Grotius and subsequent authors on the doctrines of necessity and strict liability. This comparison takes place at two levels. On the one hand, there is a comparison of the views of Grotius with those of Pufendorf, Smith, Kant and recent Kantian authors. On the other hand, there is a comparison between the doctrines of necessity and strict liability. This exercise leads to the conclusion that strict liability does not have to be a mere matter of choice opted for by positive law, but in some instances can also be thought of as a requirement of a private law framework expressing the fundamental moral equal freedom of man.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44985711","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 : 2021-07-01DOI: 10.1163/18760759-42010006
Vincent van Hoof
According to Grotius in his Inleiding (2.36.6), the actual use of two houses by the same owner could lead to the implied grant of a servitude if he transferred one of the houses to someone else, ‘without any mention either the one way or the other’. Various interpretations of this text exist, but the consensus is lacking. In this article, the author investigates the meaning and influence of Grotius’s position on implied servitudes in both his time and the following centuries. This research shows how Grotius’s opinion progressed from Bartolus’s approach to implied servitudes and sheds new light on the creation of servitudes by means of destinatione patris familias in the Netherlands.
{"title":"Grotius’s Position on Implied Servitudes by Means of Destinatione Patris Familias","authors":"Vincent van Hoof","doi":"10.1163/18760759-42010006","DOIUrl":"https://doi.org/10.1163/18760759-42010006","url":null,"abstract":"\u0000According to Grotius in his Inleiding (2.36.6), the actual use of two houses by the same owner could lead to the implied grant of a servitude if he transferred one of the houses to someone else, ‘without any mention either the one way or the other’. Various interpretations of this text exist, but the consensus is lacking. In this article, the author investigates the meaning and influence of Grotius’s position on implied servitudes in both his time and the following centuries. This research shows how Grotius’s opinion progressed from Bartolus’s approach to implied servitudes and sheds new light on the creation of servitudes by means of destinatione patris familias in the Netherlands.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45011815","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}
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