Pub Date : 2021-07-01DOI: 10.1163/18760759-42010007
J. Waszink
In Grotius’s Annales, religion appears almost exclusively as a social and political problem. References (implied or explicit) to religion as a good thing or its positive effects are lacking. This aspect of Grotius’s text arises from its equation of ‘religion’ with ‘combative orthodox religion in the post-reformation era’. However, it is not credible that this view represents Hugo Grotius’s actual opinion of the Christian faith as such. The solution seems rather that the above equation must be a conscious rhetorical strategy designed to strengthen the argument of the Annales. Continuing from that conclusion, however, the texts allow us to deduce some views on reason of state and religious policy, which do seem to have been actually held by Grotius in this period, or at least to have enjoyed his active interest.
{"title":"Religion and Government in Hugo Grotius’s Annales: Orthodoxy, William the Silent and Reason of State","authors":"J. Waszink","doi":"10.1163/18760759-42010007","DOIUrl":"https://doi.org/10.1163/18760759-42010007","url":null,"abstract":"\u0000In Grotius’s Annales, religion appears almost exclusively as a social and political problem. References (implied or explicit) to religion as a good thing or its positive effects are lacking. This aspect of Grotius’s text arises from its equation of ‘religion’ with ‘combative orthodox religion in the post-reformation era’. However, it is not credible that this view represents Hugo Grotius’s actual opinion of the Christian faith as such. The solution seems rather that the above equation must be a conscious rhetorical strategy designed to strengthen the argument of the Annales. Continuing from that conclusion, however, the texts allow us to deduce some views on reason of state and religious policy, which do seem to have been actually held by Grotius in this period, or at least to have enjoyed his active interest.","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":"49214166","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 : 2020-12-17DOI: 10.1163/18760759-41020009
Ville Kari
This article explores the writings of Hugo Grotius on the law of civil war. First, the article takes a look at what Grotius wrote about the Dutch revolt, the civil war during which he himself lived and which he helped to legitimise. Second, the article notes how in legal practice the Dutch revolt also provided a valuable early precedent for the later scholars of the law of civil war, who were more concerned with questions of revolutionary prize jurisdiction and the problem of recognition. Third, the article explores the elements relating to these questions of civil war in Grotius’s volitional law of nations as presented in De iure belli ac pacis. These provided Grotius’s most enduring legacy for the later scholars on the law of civil war.
{"title":"Hugo Grotius and the Classical Law of Civil War","authors":"Ville Kari","doi":"10.1163/18760759-41020009","DOIUrl":"https://doi.org/10.1163/18760759-41020009","url":null,"abstract":"\u0000This article explores the writings of Hugo Grotius on the law of civil war. First, the article takes a look at what Grotius wrote about the Dutch revolt, the civil war during which he himself lived and which he helped to legitimise. Second, the article notes how in legal practice the Dutch revolt also provided a valuable early precedent for the later scholars of the law of civil war, who were more concerned with questions of revolutionary prize jurisdiction and the problem of recognition. Third, the article explores the elements relating to these questions of civil war in Grotius’s volitional law of nations as presented in De iure belli ac pacis. These provided Grotius’s most enduring legacy for the later scholars on the law of civil war.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43355994","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 : 2020-12-17DOI: 10.1163/18760759-41020004
Philippine Christina Van den Brande
Centuries before being included in Hugo Grotius’s De iure belli ac pacis and De iure praedae, the subject of reprisal was already being discussed in medieval literature. The aim of this paper is to examine the medieval and early modern practice and theory of reprisal as it developed before and during Grotius’s lifetime. Its first part investigates a number of important foundational elements, such as the issues of definition and terminology, and the common characteristics of a reprisal case. In the second half, the author explores why reprisals were deemed to be a ‘perversus mos’ or ‘bad custom’ and how continued reliance on this practice was nonetheless justified by inserting it into the medieval just war doctrine. The paper does not provide a systematic study of Grotius’s own engagement with medieval reprisal sources. Rather, it should be read in conjunction with another publication in this same volume, ‘Grotius on Reprisal’ by Randall Lesaffer.
在被列入雨果·格劳秀斯(Hugo Grotius)的《战争论》(De iure belli ac pacis)和《先见之明》(De iure preedae)几个世纪之前，报复这个主题就已经在中世纪文学中被讨论过了。本文的目的是研究中世纪和早期现代报复的实践和理论，因为它在格劳秀斯的一生之前和期间发展。它的第一部分调查了一些重要的基本要素，如定义和术语问题，以及报复案件的共同特征。在后半部分，作者探讨了为什么报复被认为是一种“反常的行为”或“坏习惯”，以及如何通过将这种做法插入中世纪的正义战争学说而证明继续依赖这种做法是合理的。这篇论文没有对格劳秀斯自己与中世纪报复来源的接触进行系统的研究。相反，它应该与兰德尔·莱斯弗(Randall Lesaffer)的《格劳秀斯论报复》(Grotius on revenge)这一卷中的另一篇文章一起阅读。
{"title":"‘Remedium repraesaliarum’: The Medieval and Early Modern Practice and Theory of Reprisal within the Just War Doctrine","authors":"Philippine Christina Van den Brande","doi":"10.1163/18760759-41020004","DOIUrl":"https://doi.org/10.1163/18760759-41020004","url":null,"abstract":"<p>Centuries before being included in Hugo Grotius’s <em>De iure belli ac pacis</em> and <em>De iure praedae</em>, the subject of reprisal was already being discussed in medieval literature. The aim of this paper is to examine the medieval and early modern practice and theory of reprisal as it developed before and during Grotius’s lifetime. Its first part investigates a number of important foundational elements, such as the issues of definition and terminology, and the common characteristics of a reprisal case. In the second half, the author explores why reprisals were deemed to be a ‘perversus mos’ or ‘bad custom’ and how continued reliance on this practice was nonetheless justified by inserting it into the medieval just war doctrine. The paper does not provide a systematic study of Grotius’s own engagement with medieval reprisal sources. Rather, it should be read in conjunction with another publication in this same volume, ‘Grotius on Reprisal’ by Randall Lesaffer.</p>","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138504928","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 : 2020-12-17DOI: 10.1163/18760759-41020005
Randall Lesaffer
In neither of his two major forays into the laws of war and peace – De iure praedae or De iure belli ac pacis – did Hugo Grotius discuss the legal institutions of reprisal – whether special or general – or privateering in their own right. His profoundly novel reading of the just war doctrine in the context of his theory of natural rights, however, gave powerful legitimisation to the practices of special reprisals, as well as of privateering in times of war and of peace.
{"title":"Grotius on Reprisal","authors":"Randall Lesaffer","doi":"10.1163/18760759-41020005","DOIUrl":"https://doi.org/10.1163/18760759-41020005","url":null,"abstract":"<p>In neither of his two major forays into the laws of war and peace – <em>De iure praedae</em> or <em>De iure belli ac pacis</em> – did Hugo Grotius discuss the legal institutions of reprisal – whether special or general – or privateering in their own right. His profoundly novel reading of the just war doctrine in the context of his theory of natural rights, however, gave powerful legitimisation to the practices of special reprisals, as well as of privateering in times of war and of peace.</p>","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138541660","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 : 2020-12-17DOI: 10.1163/18760759-41020002
V. Vadi
Gentili’s conceptualization of war as a conflict between states attempted to limit the legitimacy of war to external wars only, thus precluding the legitimacy of civil wars. It reflected both the emergence of sovereign states and the vision of international law as a law among polities rather than individuals. The conceptualization of war as a dispute settlement mechanism among polities rather than a punishment for breach of the law of nations and the idea of the bilateral justice of war humanized the conduct of warfare and the content of peace treaties. The idea of perfect war excluded brigandage, piracy, and civil wars from its purview. Some scholars have suggested that perfect war had a dark side, legitimizing imperial expansion. Others have cautioned that Gentili explicitly opposed imperial expansion rather adopting anti-imperialist stances. This article suggests that these ambivalent readings of the Gentilian oeuvre reflect the ambivalence of the early modern law of nations. Under the early modern law of nations, aggression for the sake of empire was clearly unjust; nonetheless, imperial expansion took place. Whereas ‘a law which many transgress[ed] [wa]s nonetheless a law’, there was a wide divide between theory and practice.1
{"title":"Perfect War: Alberico Gentili on the Use of Force and the Early Modern Law of Nations","authors":"V. Vadi","doi":"10.1163/18760759-41020002","DOIUrl":"https://doi.org/10.1163/18760759-41020002","url":null,"abstract":"\u0000Gentili’s conceptualization of war as a conflict between states attempted to limit the legitimacy of war to external wars only, thus precluding the legitimacy of civil wars. It reflected both the emergence of sovereign states and the vision of international law as a law among polities rather than individuals. The conceptualization of war as a dispute settlement mechanism among polities rather than a punishment for breach of the law of nations and the idea of the bilateral justice of war humanized the conduct of warfare and the content of peace treaties. The idea of perfect war excluded brigandage, piracy, and civil wars from its purview. Some scholars have suggested that perfect war had a dark side, legitimizing imperial expansion. Others have cautioned that Gentili explicitly opposed imperial expansion rather adopting anti-imperialist stances. This article suggests that these ambivalent readings of the Gentilian oeuvre reflect the ambivalence of the early modern law of nations. Under the early modern law of nations, aggression for the sake of empire was clearly unjust; nonetheless, imperial expansion took place. Whereas ‘a law which many transgress[ed] [wa]s nonetheless a law’, there was a wide divide between theory and practice.1","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48399989","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 : 2020-12-17DOI: 10.1163/18760759-41020006
Rotem Giladi
This article starts with a critical reflection on John Westlake’s reading of the history of empire and the English/British East India Company – for him, essentially, the proper concern of ‘constitutional history’ rather than international law. For Westlake, approaching this history through the prism of nineteenth-century positivist doctrine, the Company’s exercise of war powers could only result from state delegation. Against his warnings to international lawyers not to stray from the proper boundaries of international legal inquiry, the article proceeds to recover Hugo Grotius’s theory of corporate belligerency in his early treatise De iure praedae. For Grotius, corporations could wage public war on behalf of the state yet, at the same time, were in law capable of waging private war in their own right. The article proceeds to reflect on the practice of corporate belligerency in the centuries separating Westlake and Grotius; it concludes with observations on the implications of Grotius’s theory of corporate belligerency today.
本文首先对约翰·韦斯特莱克(John Westlake)对帝国和英/英东印度公司历史的解读进行了批判性反思——对他来说，本质上是对“宪法历史”的适当关注，而不是国际法。对于韦斯特莱克来说，通过19世纪实证主义学说的棱镜来接近这段历史，公司行使战争权力只能来自州政府的授权。尽管雨果·格劳秀斯警告国际律师不要偏离国际法律研究的适当界限，但本文继续恢复他在其早期论文《论前瞻》(De iure preedae)中的公司交战理论。对格劳秀斯来说，公司可以代表国家发动公共战争，但同时，在法律上也可以以自己的权利发动私人战争。接着，文章反思了在西湖和格劳秀斯之间的几个世纪里，企业的好战行为;文章最后对格劳秀斯的企业交战理论在今天的影响进行了观察。
{"title":"Corporate Belligerency and the Delegation Theory from Grotius to Westlake","authors":"Rotem Giladi","doi":"10.1163/18760759-41020006","DOIUrl":"https://doi.org/10.1163/18760759-41020006","url":null,"abstract":"\u0000This article starts with a critical reflection on John Westlake’s reading of the history of empire and the English/British East India Company – for him, essentially, the proper concern of ‘constitutional history’ rather than international law. For Westlake, approaching this history through the prism of nineteenth-century positivist doctrine, the Company’s exercise of war powers could only result from state delegation. Against his warnings to international lawyers not to stray from the proper boundaries of international legal inquiry, the article proceeds to recover Hugo Grotius’s theory of corporate belligerency in his early treatise De iure praedae. For Grotius, corporations could wage public war on behalf of the state yet, at the same time, were in law capable of waging private war in their own right. The article proceeds to reflect on the practice of corporate belligerency in the centuries separating Westlake and Grotius; it concludes with observations on the implications of Grotius’s theory of corporate belligerency today.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43370413","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 : 2020-12-17DOI: 10.1163/18760759-41020008
Raymond Kubben
One of the odd things about Grotius’s thought is that he – advocate of a rebellious regime – was not very supportive of the right of resistance. Justifying the revolt at the time not only meant legitimizing the new regime he was serving; it also meant ruling out opposition against it. That posed an intricate puzzle; a puzzle Grotius solved by drawing on the theorizing on just revolt of the previous decades. This paper purports to show the connection between Grotius’s thought on just revolt and the intellectual and political environment in which Grotius came of age. It also sets out to show that the solution to the puzzle lies in the element of authority and the particular view taken on the constitutional position of the States in the Low Countries.1
{"title":"A Prodigy Child of the Dutch Revolt: Immediate ‘Precursors’ to Grotius on Just Revolt","authors":"Raymond Kubben","doi":"10.1163/18760759-41020008","DOIUrl":"https://doi.org/10.1163/18760759-41020008","url":null,"abstract":"\u0000One of the odd things about Grotius’s thought is that he – advocate of a rebellious regime – was not very supportive of the right of resistance. Justifying the revolt at the time not only meant legitimizing the new regime he was serving; it also meant ruling out opposition against it. That posed an intricate puzzle; a puzzle Grotius solved by drawing on the theorizing on just revolt of the previous decades. This paper purports to show the connection between Grotius’s thought on just revolt and the intellectual and political environment in which Grotius came of age. It also sets out to show that the solution to the puzzle lies in the element of authority and the particular view taken on the constitutional position of the States in the Low Countries.1","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48592094","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 : 2020-12-17DOI: 10.1163/18760759-41020007
D. Fedele
This paper explores the presence of late medieval ius commune in Grotius’s thought on the use of force in internal strife and war, based on De iure belli ac pacis (1625). To this end, it examines Grotius’s use of ius commune sources, and considers some similar sources, which he does not actually cite, but which relate to his discussion. By clarifying Grotius’s selection and use of ius commune sources, the paper intends to contribute to the achievement of a double aim: firstly, to determine the place of rebellion and civil war in De iure belli ac pacis, especially in relation to (external) war; and, secondly, to assess Grotius’s approach to the two former issues, particularly with regard to the criteria by which a distinction between rebellion and civil war can be drawn, and to the effects of this distinction.
本文以《交战条约》（De iure belli ac pacis，1625）为基础，探讨了中世纪晚期尤斯共同体在格劳秀斯关于内部冲突和战争中使用武力的思想中的存在。为此，它考察了格罗秀斯对ius community来源的使用，并考虑了一些类似的来源，他实际上没有引用这些来源，但这些来源与他的讨论有关。本文通过澄清格劳秀斯对共同体来源的选择和使用，旨在为实现双重目标做出贡献：首先，确定《交战条约》中叛乱和内战的地点，特别是与（外部）战争有关的地点；第二，评估格罗秀斯处理前两个问题的方法，特别是在区分叛乱和内战的标准以及这种区别的影响方面。
{"title":"Grotius and Late Medieval Ius Commune on Rebellion and Civil War","authors":"D. Fedele","doi":"10.1163/18760759-41020007","DOIUrl":"https://doi.org/10.1163/18760759-41020007","url":null,"abstract":"\u0000This paper explores the presence of late medieval ius commune in Grotius’s thought on the use of force in internal strife and war, based on De iure belli ac pacis (1625). To this end, it examines Grotius’s use of ius commune sources, and considers some similar sources, which he does not actually cite, but which relate to his discussion. By clarifying Grotius’s selection and use of ius commune sources, the paper intends to contribute to the achievement of a double aim: firstly, to determine the place of rebellion and civil war in De iure belli ac pacis, especially in relation to (external) war; and, secondly, to assess Grotius’s approach to the two former issues, particularly with regard to the criteria by which a distinction between rebellion and civil war can be drawn, and to the effects of this distinction.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45350034","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 : 2020-12-17DOI: 10.1163/18760759-41020001
R. Lesaffer
In both of Hugo Grotius’s major forays into the law of nations, the just war doctrine provided the backbone of the argument. Between 1604 and 1606, Grotius prepared a treatise in defence of the capture of the Portuguese ship Santa Catarina in the Strait of Singapore by a fleet of the Dutch East India Company. In the text, which became known as De iure praedae commentarius upon its publication in 1868, Grotius refashioned the just war doctrine in order to argue that the captured ship and cargo were good prize in a just war. According to Grotius, this was the case regardless of whether one considered the Company an agent of the Dutch Republic in a war between states, or a private actor. With his idiosyncratic reading of the just war doctrine, Grotius wanted to respond to the obvious contention of the Republic’s Iberian enemies that the Dutch Republic, or the States of Holland whose agent the Company was, was a rebel force and lacked the authority to wage war. When Grotius returned to the theme of just war two decades later in De iure belli ac pacis libri tres (1625), he did so in the context of his construction of a general theory of the role of law – natural law as well as the volitional law of nations – in relation to war and peace-making. Grotius used the classical doctrine of just cause, in combination with the scheme of private rights and remedies of persons, property, contracts, debts and punishments, to structure his elaborate expositions of natural rights and obligations of both people and states. This scheme he took, in all probability, from the re-systematisation of Roman private law that the French humanist jurist, Hugo Donellus (1527–1591), professor at Leiden University, had proposed on the basis of the Institutes of Justinian.1 Although the purpose and logic of systemisation of the two works were very different, Grotius did draw
在雨果·格老秀斯对国际法的两次重大尝试中，正义战争学说都是这一论点的支柱。1604年至1606年间，格罗秀斯撰写了一篇论文，为荷兰东印度公司的舰队在新加坡海峡捕获葡萄牙船只圣卡塔琳娜号辩护。1868年出版的这本书被称为《评论》（De iure praedae commentarius），格罗秀斯在书中重新提出了正义战争理论，以证明被俘的船只和货物是正义战争中的好奖品。Grotius表示，无论人们认为该公司是荷兰共和国在国家间战争中的代理人，还是私人行为者，情况都是如此。Grotius对正义战争学说有着独特的解读，他想回应共和国伊比利亚敌人的明显论点，即荷兰共和国或公司代理人荷兰国是一支反叛力量，缺乏发动战争的权力。二十年后，当格老秀斯在《自由战争条约》（1625）中回到正义战争的主题时，他是在构建法律作用的一般理论的背景下这样做的——自然法和国家意志法——与战争和缔造和平有关。格老秀斯运用经典的正当理由学说，结合人的私人权利和救济、财产、合同、债务和惩罚的方案，构建了他对人和国家的自然权利和义务的详尽阐述。这一方案很可能来自法国人文主义法学家、莱顿大学教授雨果·多内勒斯（1527-1591）在查士丁尼研究院的基础上提出的罗马私法的重新系统化
{"title":"Grotius on the Use of Force: Perfect, Imperfect and Civil Wars. An Introduction","authors":"R. Lesaffer","doi":"10.1163/18760759-41020001","DOIUrl":"https://doi.org/10.1163/18760759-41020001","url":null,"abstract":"In both of Hugo Grotius’s major forays into the law of nations, the just war doctrine provided the backbone of the argument. Between 1604 and 1606, Grotius prepared a treatise in defence of the capture of the Portuguese ship Santa Catarina in the Strait of Singapore by a fleet of the Dutch East India Company. In the text, which became known as De iure praedae commentarius upon its publication in 1868, Grotius refashioned the just war doctrine in order to argue that the captured ship and cargo were good prize in a just war. According to Grotius, this was the case regardless of whether one considered the Company an agent of the Dutch Republic in a war between states, or a private actor. With his idiosyncratic reading of the just war doctrine, Grotius wanted to respond to the obvious contention of the Republic’s Iberian enemies that the Dutch Republic, or the States of Holland whose agent the Company was, was a rebel force and lacked the authority to wage war. When Grotius returned to the theme of just war two decades later in De iure belli ac pacis libri tres (1625), he did so in the context of his construction of a general theory of the role of law – natural law as well as the volitional law of nations – in relation to war and peace-making. Grotius used the classical doctrine of just cause, in combination with the scheme of private rights and remedies of persons, property, contracts, debts and punishments, to structure his elaborate expositions of natural rights and obligations of both people and states. This scheme he took, in all probability, from the re-systematisation of Roman private law that the French humanist jurist, Hugo Donellus (1527–1591), professor at Leiden University, had proposed on the basis of the Institutes of Justinian.1 Although the purpose and logic of systemisation of the two works were very different, Grotius did draw","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43125787","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 : 2020-12-17DOI: 10.1163/18760759-41020003
Camilla Boisen
This article investigates the formal purpose of declaring wars for Hugo Grotius. Grotius was adamant that states always use justification in a duplicitous way to conceal their real motivation to go to war. As such, the purpose of declaration is not to assert the just cause of war. Rather, what any public declaration does, is provide recognition that confers legal validation to the disputing parties. The legal rules of war were described by the law of nations and occasionally permitted states to commit certain ‘war crimes’ with impunity. For Grotius, this was not a moral sanctioning of such crimes but rather a means to prevent the occurrence of wars, which such endless repudiations risked causing or exacerbating. Grotius’s concern for the effects of war is conspicuous; and recounting his maxim that war should always be a last resort, this article argues that declaration of war has a distinct moral purpose for Grotius. In fact, public declaration of war is, together with constraints on the conduct of war, a ‘principle of moderation’ Grotius insists should be upheld in times of war. Declaration of war gives the parties avenues to seek peace and reconciliation, and, therefore has a humanitarian purpose for Grotius by ultimately seeking to prevent the disparaging effects of war. Even in wars that do not demand a public declaration, such as those regulated by natural law such as punitive wars or defensive wars, Grotius cautions that declarations of war are advisable. The remaining lingering issue is how to engage with unlawful enemy combatants, such as pirates - a distinct problem that the international community still faces with increasing regularity. Grotius was certainly aware of the legal (and moral) consequences of recognising belligerency we cannot possible hope to build moral relations with, and, this article claims, ‘unlawful’ enemies ultimately demarcates the boundary of international society.
{"title":"Hugo Grotius, Declaration of War, and the International Moral Order","authors":"Camilla Boisen","doi":"10.1163/18760759-41020003","DOIUrl":"https://doi.org/10.1163/18760759-41020003","url":null,"abstract":"\u0000This article investigates the formal purpose of declaring wars for Hugo Grotius. Grotius was adamant that states always use justification in a duplicitous way to conceal their real motivation to go to war. As such, the purpose of declaration is not to assert the just cause of war. Rather, what any public declaration does, is provide recognition that confers legal validation to the disputing parties. The legal rules of war were described by the law of nations and occasionally permitted states to commit certain ‘war crimes’ with impunity. For Grotius, this was not a moral sanctioning of such crimes but rather a means to prevent the occurrence of wars, which such endless repudiations risked causing or exacerbating. Grotius’s concern for the effects of war is conspicuous; and recounting his maxim that war should always be a last resort, this article argues that declaration of war has a distinct moral purpose for Grotius. In fact, public declaration of war is, together with constraints on the conduct of war, a ‘principle of moderation’ Grotius insists should be upheld in times of war. Declaration of war gives the parties avenues to seek peace and reconciliation, and, therefore has a humanitarian purpose for Grotius by ultimately seeking to prevent the disparaging effects of war. Even in wars that do not demand a public declaration, such as those regulated by natural law such as punitive wars or defensive wars, Grotius cautions that declarations of war are advisable. The remaining lingering issue is how to engage with unlawful enemy combatants, such as pirates - a distinct problem that the international community still faces with increasing regularity. Grotius was certainly aware of the legal (and moral) consequences of recognising belligerency we cannot possible hope to build moral relations with, and, this article claims, ‘unlawful’ enemies ultimately demarcates the boundary of international society.","PeriodicalId":42132,"journal":{"name":"Grotiana","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47724997","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：