Sources in the Scholastic Legacy

2018 ◽  
Author(s):  
Peter Haggenmacher
Keyword(s):  
Eighteenth Century ◽  
Sixteenth Century ◽  
International Law ◽  
Moral Philosophy ◽  
Natural Law ◽  
Legal Discourse ◽  
Thomas Aquinas ◽  
Legal Norms ◽  
Law Of Nations ◽  
Ius Gentium

This chapter enquires into the sources of international law in the scholastics. In fact the concept of sources of law obtained general currency in legal discourse, and how international law took shape as a legal discipline only after the heyday of scholasticism. But the two main pillars of what was to become classical international law in the eighteenth century—natural law and the law of nations—were both part of the theologians’ teachings of moral philosophy, especially with the Dominicans and later the Jesuits. Examining the two concepts handed down from Antiquity, Thomas Aquinas had assigned them distinct places in his system of legal norms, while fathoming their respective grounds of validity. His endeavours were continued by his sixteenth-century Spanish followers, who set out to explore the ‘internationalist’ dimensions of the Protean concept of ius gentium as well as the ‘fundamentalist’ properties of ius naturae.

scholarly journals Sovereignty and Natural Law in the Legal Discourse of the Ancien Régime

2015 ◽  
Vol 16 (2) ◽  
Author(s):  
Michel Troper
Keyword(s):  
Sixteenth Century ◽  
International Law ◽  
Natural Law ◽  
Legal Discourse ◽  
Very Old ◽  
Absolute Power ◽  
Final Point ◽  
Positive Law ◽  
Original Definition ◽  
Legal Texts

AbstractWhenever sovereignty is defined as a supreme, absolute, unfettered and unlimited power, there is an obvious contradiction between two ideas: that states are sovereign and that they can or should be limited. Nevertheless, while many legal texts proclaim sovereignty, there are several signs that states are indeed limited by constitutional or international law. In light of this situation, some authors claim that those texts are mere proclamations and that sovereignty is an obsolete concept, while others argue that states are still sovereign and that there are no real limits, but others still try to conceive of sovereignty as limited by morality or natural law. Professor Benvenisti’s remarkable theory of sovereigns as trustees of humanity is part of a very old tradition going back to the sixteenth century where sovereignty was defined as an absolute power, which is unlimited by positive law, yet based on and limited by natural law. This Article tries to show that this concept of sovereignty has emerged because of the necessity to provide a final point of imputation to the hierarchy of norms, and that the limitation by natural law was part of the original definition. Sovereignty so defined can usefully justify not only the power of kings and lawmakers but also that of courts trying to control kings and lawmakers.

Natural Law Theories in the Early Enlightenment. By T. J. Hochstrasser. Cambridge: Cambridge University Press, 2000. 246p. $54.95.

2002 ◽  
Vol 96 (1) ◽  
pp. 183-184 ◽  
Author(s):  
Michael J. Seidler
Keyword(s):  
Early Modern ◽  
International Law ◽  
Moral Philosophy ◽  
Natural Law ◽  
Historical Study ◽  
Cambridge University ◽  
Positive Law ◽  
Modern Natural ◽  
Historical Fact ◽  
Ius Gentium

This detailed historical study focuses on Protestant natural law theories in the early German Enlightenment (explicitly excluding the French and British sectors) and traces their influence, or fate, through Kant. Despite its title, it is more than a specialist tome devoted to an historically isolable development, and it is not merely a subsidiary, underlaborer's attempt to recount the prehistory of Kant's achievement. Rather, by tracing several important background currents through the period concerned, Hochstrasser illuminates the odd historical fact that German enlighteners at the end of this span knew or thought so little of those at its beginning. The central topics are eclecticism; the so-called “histories of morality” that were part of its self-conscious legitimation method; the rationalism-voluntarism split in early modern natural law; and the associated distinction among moral philosophy (ethics), natural (positive) law, and international law (ius gentium) that developed out of these debates.

The Use of Vattel in the American Law of Nations

2012 ◽  
Vol 106 (3) ◽  
pp. 547-571 ◽  
Author(s):  
Brian Richardson
Keyword(s):  
Eighteenth Century ◽  
International Law ◽  
International Peace ◽  
Founding Fathers ◽  
Law Of Nations ◽  
American Law ◽  
History Of ◽  
The Law ◽  
History Of International Law

Although careful scholarly treatment of the history of international law is now thriving, within U.S. courts that history now begins with one eighteenth-century treatise published in Neuchâtel, Switzerland, in 1758 and published in translation for modern readers under the aegis of the Carnegie Endowment for International Peace in 1916. This treatise is Emer de Vattel’s Droit des gens ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains. My aim in this article is to appraise the elevation of Vattel to vaunted originalist heights in U.S. law. The claim that Vattel’s theory of the law of nations completely represents how the Founding Fathers (Founders) understood the law of nations should be rejected as a matter of history.

Carmichael, Gershom (1672–1729)

2018 ◽  
Author(s):  
James Moore ◽  
Michael Silverthorne
Keyword(s):  
Eighteenth Century ◽  
Great Britain ◽  
Moral Philosophy ◽  
Natural Law ◽  
Adam Smith ◽  
Natural Theology ◽  
Scottish Enlightenment ◽  
Thomas Reid ◽  
Francis Hutcheson ◽  
The University

Gershom Carmichael was a teacher and writer of pivotal importance for the Scottish Enlightenment of the eighteenth century. He was the first Professor of Moral Philosophy at the University of Glasgow, predecessor of Francis Hutcheson, Adam Smith and Thomas Reid. Carmichael introduced the natural law tradition of Grotius, Pufendorf and Locke to the moral philosophy courses he taught at the University of Glasgow (1694–1729). His commentaries on Samuel Pufendorf’s work on the duty of man and citizen (1718 and 1724) made his teaching available to a wider readership in Great Britain and in Europe. He also composed an introduction to logic, Breviuscula Introductio ad Logicam, (1720 and 1722) and a brief system of natural theology, Synopsis Theologiae Naturalis (1729).

Sources in the Scholastic Legacy

2018 ◽  
Author(s):  
Annabel Brett
Keyword(s):  
International Law ◽  
Natural Law ◽  
Human Practice ◽  
Innovative Thinking ◽  
Ius Gentium ◽  
Modern Sense

This chapter observes that the ‘sources of international law’ is a complicated concept for later scholastic authors. This is because they have no doctrine of ‘sources’ and because the phrase ius gentium, as they employ it, is not appropriately translated by ‘international law’. When they write about the ius gentium, they are engaged in an exercise of hermeneutic reconstruction of a law that has already been legislated, a reconstruction that is also a legitimation of their own position in the present. They draw their materials from scholastic authorities, from natural law, and from human practice and history. The possibility of abrogation, however, puts pressure on even their most innovative thinking about the ius gentium. This shows yet again how difficult they find it to conceptualize making international law in the present, and thus to conceive of sources of international law in anything like the modern sense.

The Theory of Recognition in Fieri (1958)

2017 ◽  
Author(s):  
C. H. Alexandrowicz
Keyword(s):  
Nineteenth Century ◽  
Eighteenth Century ◽  
International Law ◽  
Direct Influence ◽  
Historical Survey ◽  
Early Nineteenth Century ◽  
Formative Stage ◽  
Law Of Nations ◽  
New States ◽  
The Law

The historian of international law attempting an inquiry into the law of recognition of States and governments during its formative stage, particularly into eighteenth-century sources, is bound to consult the first historical survey of the literature of the law of nations by D. H. L. Ompteda, published in 1785. Ompteda referred to problems of recognition under the general heading of the fundamental right of nations to freedom and independence. All the essays he mentioned as being directly or indirectly relevant to problems of recognition of new States or rulers were written by comparatively unknown authors. Among them, Justi and Steck were perhaps the most active participants in the first attempts to formulate a theory of recognition. This chapter considers these early attempts, in particular the direct influence of Justi and Steck on Martens and Klueber, and through them on Henry Wheaton and some of the early nineteenth-century writers.

Le rôle des Traités dans les relations entre les puissances européennes et les souverains africains

2017 ◽  
Author(s):  
C. H. Alexandrowicz
Keyword(s):  
Eighteenth Century ◽  
International Law ◽  
Colonial Period ◽  
Transitional Period ◽  
North African ◽  
Law Of Nations ◽  
History Of ◽  
Bilateral Treaties

This chapter divides the history of treaty-making between European and African powers into three periods. In the pre-colonial period through the end of the eighteenth century, European treaty relations with primarily North African powers reflected a non-discriminatory law of nations. During a transitional period leading to the 1885 Congress of Berlin, provisions of equality and reciprocity disappeared from European treaties with African powers. Still, as European powers sought to secure juridical title to African land through bilateral treaties of territorial cession and protection with African sovereigns, the latter retained a measure of influence over negotiations. After the Congress of Berlin, the majority of international jurists, members of the positivist school, defied the rules of traditional international law with a new conception of colonial protectorate that gave European powers carte blanche to occupy and annex the territory of ‘protected’ states.

Jean Bodin on International Law

2017 ◽  
Author(s):  
Merio Scattola
Keyword(s):  
Sixteenth Century ◽  
International Law ◽  
Public Law ◽  
Legal Knowledge ◽  
The Public ◽  
Political Experience ◽  
Jean Bodin ◽  
Law Of Nations

This chapter argues that a reading of Jean Bodin offers important issues for the understanding of international law because he explicitly tried to develop, albeit briefly, a new branch of legal knowledge that had not existed before his time. This discipline had to comprise and to explain all rules that regulated the ‘public’ intercourse among commonwealths or ‘nations’. In this sense, and in the language of the sixteenth century, Bodin worked on the foundation of a ‘public law of nations’. He conceived the sphere of the relationships among commonwealths with the traditional conceptual means of iustum bellum and of fides, and this whole domain of legal and political experience was set under the principle of faith and loyalty. This tells us that the sovereignty proposed by Jean Bodin is less absolute than we would imagine at first sight.

Jefferson and the Law of Nations

1919 ◽  
Vol 13 (3) ◽  
pp. 379-399
Author(s):  
Louis Martin Sears
Keyword(s):  
Eighteenth Century ◽  
International Law ◽  
Classical Period ◽  
Human Relations ◽  
Law Of Nations ◽  
New Development ◽  
Practical Politics ◽  
The Law ◽  
New Nation ◽  
International Anarchy

The embargo upon commerce which Congress at the suggestion of President Jefferson decreed in 1807 was more than an experiment in practical politics. It was the test on a magnificent scale of a theory of international law long maturing in the President's mind, and the fitting contribution of a new nation to a body of doctrine which owed its revival, if not its inception, to the need of curbing the international anarchy which accompanied the rise of modern states. The law of nations was a new development. Less than two centuries had passed since Grotius put forth the pioneer work De jure belli ac pacis (1625). The interval between the publication of Grotius' book and the issuance of the embargo decree was, in fact, the classical period in international law. The labors of Leibnitz, Wolff, Vattel, and Bynkershoek built up a system popular, not only with doctrinaires and philosophers, but even with enlightened despots in their more subjective moments. By the close of the eighteenth century, the law of nations had acquired as much prestige as it could ever hope to secure without the support of its own guns and navies. It was the highest political expression of an age which believed in the perfectability of human relations through sheer intellect. And if its dicta sometimes failed to govern the actions of courts and cabinets, its infringement was not a matter of indifference. Nations broke treaties, to be sure, but they did not call them “scraps of paper.”

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