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Strict Liability and Necessity in Grotius, Pufendorf, Smith, Kant, and Beyond Grotius、Pufendorf、Smith、Kant及其后的严格责任与必然性
IF 0.5
Grotiana Pub Date : 2021-07-01 DOI: 10.1163/18760759-42010005
B. Wauters
{"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":" ","pages":""},"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}
引用次数: 0
Religion and Government in Hugo Grotius’s Annales: Orthodoxy, William the Silent and Reason of State 雨果·格劳秀斯编年史中的宗教与政府:正统、沉默的威廉和国家的理性
IF 0.5
Grotiana Pub Date : 2021-07-01 DOI: 10.1163/18760759-42010007
J. Waszink
{"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":" ","pages":""},"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}
引用次数: 0
‘Remedium repraesaliarum’: The Medieval and Early Modern Practice and Theory of Reprisal within the Just War Doctrine “报复”:中世纪和近代早期正义战争理论中的报复实践与理论
IF 0.5
Grotiana Pub Date : 2020-12-17 DOI: 10.1163/18760759-41020004
Philippine Christina Van den Brande
{"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":"14 9","pages":""},"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}
引用次数: 0
Grotius on Reprisal 格劳秀斯论报复
IF 0.5
Grotiana Pub Date : 2020-12-17 DOI: 10.1163/18760759-41020005
Randall Lesaffer
{"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":"61 1","pages":""},"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}
引用次数: 0
Hugo Grotius and the Classical Law of Civil War 格劳秀斯与古典内战法
IF 0.5
Grotiana Pub Date : 2020-12-17 DOI: 10.1163/18760759-41020009
Ville Kari
{"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":" ","pages":""},"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}
引用次数: 0
Perfect War: Alberico Gentili on the Use of Force and the Early Modern Law of Nations 《完美战争:阿尔贝里科·真蒂利论武力的使用和早期现代国际法》
IF 0.5
Grotiana Pub Date : 2020-12-17 DOI: 10.1163/18760759-41020002
V. Vadi
{"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":" ","pages":""},"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}
引用次数: 0
Corporate Belligerency and the Delegation Theory from Grotius to Westlake 企业交战与Grotius对西湖的委托理论
IF 0.5
Grotiana Pub Date : 2020-12-17 DOI: 10.1163/18760759-41020006
Rotem Giladi
{"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":" ","pages":""},"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}
引用次数: 0
A Prodigy Child of the Dutch Revolt: Immediate ‘Precursors’ to Grotius on Just Revolt 荷兰起义的神童：Grotius正义起义的直接“先驱”
IF 0.5
Grotiana Pub Date : 2020-12-17 DOI: 10.1163/18760759-41020008
Raymond Kubben
{"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":" ","pages":""},"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}
引用次数: 0
Grotius and Late Medieval Ius Commune on Rebellion and Civil War Grotius和中世纪晚期的Ius Commune谈叛乱和内战
IF 0.5
Grotiana Pub Date : 2020-12-17 DOI: 10.1163/18760759-41020007
D. Fedele
{"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":" ","pages":""},"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}
引用次数: 1
Grotius on the Use of Force: Perfect, Imperfect and Civil Wars. An Introduction Grotius谈武力的使用：完美、不完美和内战。引言
IF 0.5
Grotiana Pub Date : 2020-12-17 DOI: 10.1163/18760759-41020001
R. Lesaffer
{"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":" ","pages":""},"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}
引用次数: 1
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