This article argues that Grotius has a modern theory of the state that can take its place alongside Bodin and Hobbes as one of the ways in which early modern civil philosophy sought to solve the problem of the authority and validity of political order. This is interesting because Grotius’s account of the state draws a picture of the relationship between political and legal ordering, and history, in which the interrelationship of the political and the legal allows a range of adaptive and adaptable state-forms. State authority is made possible and accountable under a system of natural legal right, even as its constitution is a historical achievement that should not readily be disturbed and in which a large range of freedom and unfreedom is lawful and should be accepted. I argue that, understood in this way, the State Theory of Grotius is not only modern, but provides in its methods and insights, a potential answer to one of the key conceptual dead ends of modern theories of sovereignty: the idea that sovereign power must be perpetually concentrated in one organ or entity if it is to retain what makes it sovereign. Along the way, I highlight the significance of state theory for contemporary discussions of international, transnational and global law.
{"title":"The State Theory of Grotius","authors":"Nehal Bhuta","doi":"10.1093/CLP/CUAA005","DOIUrl":"https://doi.org/10.1093/CLP/CUAA005","url":null,"abstract":"\u0000 This article argues that Grotius has a modern theory of the state that can take its place alongside Bodin and Hobbes as one of the ways in which early modern civil philosophy sought to solve the problem of the authority and validity of political order. This is interesting because Grotius’s account of the state draws a picture of the relationship between political and legal ordering, and history, in which the interrelationship of the political and the legal allows a range of adaptive and adaptable state-forms. State authority is made possible and accountable under a system of natural legal right, even as its constitution is a historical achievement that should not readily be disturbed and in which a large range of freedom and unfreedom is lawful and should be accepted. I argue that, understood in this way, the State Theory of Grotius is not only modern, but provides in its methods and insights, a potential answer to one of the key conceptual dead ends of modern theories of sovereignty: the idea that sovereign power must be perpetually concentrated in one organ or entity if it is to retain what makes it sovereign. Along the way, I highlight the significance of state theory for contemporary discussions of international, transnational and global law.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44996909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is a long tradition of international relations and legal scholars warning of the demise of the jus ad bellum—the body of international law that governs when states may use force across national borders. I argue in this Lecture, presented at The University College London Faculty of Laws in October 2020, that these warnings have mostly been wrong. The reason they have been wrong is that they have misdiagnosed the main threat to the jus ad bellum, or at least, they have myopically focused on and grossly overstated the seriousness of a particular kind of threat. And in doing so, they have diverted attention away from other challenges that might actually push the contemporary jus ad bellum to the breaking point—and that we might now confront.
长期以来，国际关系和法律学者一直在警告“战争法”(jus and bellus)的消亡。“战争法”是国际法的主体，规定国家何时可以跨越国界使用武力。在2020年10月伦敦大学学院法学院的这次演讲中，我认为这些警告大多是错误的。他们错误的原因是，他们错误地诊断了对“战争法”的主要威胁，或者至少，他们目光短浅地关注并严重夸大了某种特定威胁的严重性。在这样做的过程中，他们转移了人们对其他挑战的注意力，这些挑战实际上可能会将当代战争法推向崩溃的边缘，而我们现在可能会面临这些挑战。
{"title":"What Might (Finally) Kill the Jus ad Bellum?","authors":"Monica Hakimi","doi":"10.2139/ssrn.3748647","DOIUrl":"https://doi.org/10.2139/ssrn.3748647","url":null,"abstract":"\u0000 There is a long tradition of international relations and legal scholars warning of the demise of the jus ad bellum—the body of international law that governs when states may use force across national borders. I argue in this Lecture, presented at The University College London Faculty of Laws in October 2020, that these warnings have mostly been wrong. The reason they have been wrong is that they have misdiagnosed the main threat to the jus ad bellum, or at least, they have myopically focused on and grossly overstated the seriousness of a particular kind of threat. And in doing so, they have diverted attention away from other challenges that might actually push the contemporary jus ad bellum to the breaking point—and that we might now confront.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46835254","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Political parties appear to be in crisis. The recent wave of democratic deconsolidation in several established democracies has been accompanied by the collapse, authoritarian takeover, or external capture of mainstream political parties, the partisan capture of state institutions, and a rise in hyper-nationalistic and exclusionary partisan rhetoric.1 While political parties have long been a central object of study in political science, constitutional theory scholars have, by and large, ignored this key democratic institution.2 In part, this has been due to the influence of the American and the British constitutional traditions which, unlike their European continental counterparts, are largely silent on political parties. This silence is largely a feature of big-C constitutional codes in the anglophone world. Small-c constitutional statutes, conventions, and judicial precedents in these states do, admittedly, engage extensively with political parties.3 But the large-C textual silence is nonetheless indicative of the level of salience this key constitutional institution has been given, both in constitutional practice and constitutional scholarship. More substantively, big-C codes largely design key state institutions in a democracy. Parcelling off considerations about political parties to small-c statutes and conventions has the effect that the party system has to take the design of key state institutions as a given. As this paper argues, however, bringing parties to the forefront of the constitutional imagination has very important implications for how we ought to think of fundamental institutions and offices of the state. Furthermore, big-C constitutional change tends to require the buy-in of opposition parties, whereas small-c changes can usually be made by the ruling party/coalition alone. It is simply bad design to let one of the competing players unilaterally change the rules of the game. It is no surprise that continental big-C codes, led by Germany after the Second World War, are far more explicit in their attention to parties and their relationship with democracy. Even so, the Anglophone silence is mimicked in comparative constitutional studies scholarship, dominated as it is by American constitutional discourses. It is almost impossible to properly understand the functioning of different institutional arrangements without a close attention to the party system in which they operate.4 Constitutional scholarship that confines itself to institutional analysis alone, without understanding how they are conditioned by political parties, is looking at a seriously distorted picture of constitutional practice.
{"title":"Political Parties in Constitutional Theory","authors":"Tarunabh Khaitan","doi":"10.1093/clp/cuaa004","DOIUrl":"https://doi.org/10.1093/clp/cuaa004","url":null,"abstract":"Political parties appear to be in crisis. The recent wave of democratic deconsolidation in several established democracies has been accompanied by the collapse, authoritarian takeover, or external capture of mainstream political parties, the partisan capture of state institutions, and a rise in hyper-nationalistic and exclusionary partisan rhetoric.<span></span><sup>1</sup> While political parties have long been a central object of study in political science, constitutional theory scholars have, by and large, ignored this key democratic institution.<span></span><sup>2</sup> In part, this has been due to the influence of the American and the British constitutional traditions which, unlike their European continental counterparts, are largely silent on political parties. This silence is largely a feature of big-C constitutional codes in the anglophone world. Small-c constitutional statutes, conventions, and judicial precedents in these states do, admittedly, engage extensively with political parties.<span></span><sup>3</sup> But the large-C textual silence is nonetheless indicative of the level of salience this key constitutional institution has been given, both in constitutional practice and constitutional scholarship. More substantively, big-C codes largely design key state institutions in a democracy. Parcelling off considerations about political parties to small-c statutes and conventions has the effect that the party system has to take the design of key state institutions as a given. As this paper argues, however, bringing parties to the forefront of the constitutional imagination has very important implications for how we ought to think of fundamental institutions and offices of the state. Furthermore, big-C constitutional change tends to require the buy-in of opposition parties, whereas small-c changes can usually be made by the ruling party/coalition alone. It is simply bad design to let one of the competing players unilaterally change the rules of the game. It is no surprise that continental big-C codes, led by Germany after the Second World War, are far more explicit in their attention to parties and their relationship with democracy. Even so, the Anglophone silence is mimicked in comparative constitutional studies scholarship, dominated as it is by American constitutional discourses. It is almost impossible to properly understand the functioning of different institutional arrangements without a close attention to the party system in which they operate.<span></span><sup>4</sup> Constitutional scholarship that confines itself to institutional analysis alone, without understanding how they are conditioned by political parties, is looking at a seriously distorted picture of constitutional practice.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536750","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Socialism and the Constitution","authors":"K. Ewing","doi":"10.1093/clp/cuaa002","DOIUrl":"https://doi.org/10.1093/clp/cuaa002","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuaa002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49154265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There has been heated debate over the test of dishonesty since it was first laid down in Royal Brunei Airlines v Tan. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust, that is, assistants endorse or accept their causal role in bringing it about. Three implications follow. First, the mental element should be fixed at the minimum level necessary to reflect endorsement rather than varying by the degree of causal contribution to the primary wrong. Second, the test of neither dishonesty nor knowledge fully captures the requisite mental element for endorsement. Third, a test framed in terms of intention and belief concerning the core elements of a breach would better identify the mental element of accessory liability in equity. This reformulated test would add much-needed transparency to mental element determination for equitable accessory liability.
{"title":"The Mental Element in Equitable Accessory Liability","authors":"L. Ho","doi":"10.1093/CLP/CUAB001","DOIUrl":"https://doi.org/10.1093/CLP/CUAB001","url":null,"abstract":"\u0000 There has been heated debate over the test of dishonesty since it was first laid down in Royal Brunei Airlines v Tan. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust, that is, assistants endorse or accept their causal role in bringing it about. Three implications follow. First, the mental element should be fixed at the minimum level necessary to reflect endorsement rather than varying by the degree of causal contribution to the primary wrong. Second, the test of neither dishonesty nor knowledge fully captures the requisite mental element for endorsement. Third, a test framed in terms of intention and belief concerning the core elements of a breach would better identify the mental element of accessory liability in equity. This reformulated test would add much-needed transparency to mental element determination for equitable accessory liability.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48145642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","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：