Grotius and the Origin of the Ruler's Right to Punish

Grotiana ◽  
2007 ◽  
Vol 26 (1) ◽  
pp. 396-415 ◽  
Author(s):  
Gustaaf van Nifterik
Keyword(s):  
Constitutional Law ◽  
John Locke ◽  
Thomas Hobbes ◽  
The State ◽  
Constitutional Theory ◽  
War And Peace ◽  
The Law ◽  
The One ◽  
The Right

AbstractAn important aspect of any constitutional theory is the state's power to punish transgressions of the law, or the ius gladii. Although Grotius never formulated a complete, comprehensive constitutional theory, traces of such a theory can be found in many of his writings not explicitly devoted to constitutional law. Punishment even plays an important role in his books on war (and peace), since to punish transgressions of the law is ranked among the just causes of war.Given the fact that a state may punish transgressions of the law – transgressions by individuals within and even outside the state, but also transgressions of the law by other states – the question may arise concerning the origin of such a right to punish. It will be shown that Grotius did not give the same answer to this question in his various works. As the right to punish is concerned, we find a theory that seems to be akin to the one of John Locke in the De iure praedae (around 1605), one akin to the theories of the Spanish late-scholastics in De satisfactione and De imperio (around 1615), and a theory coming close to what Thomas Hobbes had said on the ruler's right to punish in the De iure belli ac pacis (around 1625).Of course, Grotius can only have been familiar with the theory of the Spanish late-scholastics, since those of Locke and Hobbes were still to be written by the time Grotius had passed away.

The Constitutional Position of the Partito Nazionale Fascista

1937 ◽  
Vol 31 (2) ◽  
pp. 227-242
Author(s):  
H. Arthur Steiner
Keyword(s):  
Communist Party ◽  
The State ◽  
Constitutional Theory ◽  
Nazi Regime ◽  
The Public ◽  
The Law ◽  
The One ◽  
Definition Of ◽  
The Right ◽  
Indirect Reference

In the one-party states, of which the U.S.S.R., Germany, and Italy may be taken as the best examples, the definition of relationships between the party and the state has presented a major problem of constitutional theory. No two of these states have solved the problem in the same way. The C.P.S.U., engineering the dictatorship of the proletariat, depends upon methods which are constitutionally indirect. Only in the Commission for Soviet Control is there a constitutionalized inter-relationship between the mechanisms of the party and the state; for the rest, the party relies upon its political discipline over the public personnel. Indirect reference to the Communist party is contained in the new Soviet constitution, in the guarantee to citizens of the right of “uniting in the Communist party of the U.S.S.R.,” and in the incorporation of the hammer and sickle and the slogan of the party into the emblem of the state. On the other hand, the Nazi régime in Germany prohibited the formation of other parties than the N.S.D.A.P. by the law of July 14, 1933, and, by the law of December 1, 1933, proclaimed the formal union of the party and the state.

On the State of War and of Peace

2019 ◽  
pp. 142-192
Author(s):  
Jean Allain
Keyword(s):  
Dispute Settlement ◽  
The State ◽  
Third Party ◽  
War And Peace ◽  
Law Of Nations ◽  
The Law ◽  
The Right ◽  
Peace Treaties

Book Three has Rayneval taking the reader through the Law of Nations as it relates to war and peace. A focus is placed on the origins, causes, effects, and conduct of war both on land and at sea. The right of conquest in considered, including prisoners, hostages, as well as civilians in conquered territory. This Book also examines the various principles governing alliances and the role of Neutral Powers in times of war. Where the seas are concerned, Rayneval considers the role of Neutrals Powers, of the right to visit in times of war, of Letters of Marque, and the taking of Prizes. Where peace is concerned, Rayneval speaks of the nature and obligations flowing from peace treaties and invokes mediation as the sole basis of third-party dispute settlement.

1 The Prerogative in Foreign Affairs

1986 ◽  
Author(s):  
Mann F A
Keyword(s):  
Foreign Policy ◽  
The State ◽  
Foreign Affairs ◽  
Financial Resources ◽  
War And Peace ◽  
The Law ◽  
The Government ◽  
The Right

The conduct of foreign affairs is an executive act of government in which neither the Queen nor Parliament has any part. It is the Government which represents the State and determines its policy, though Parliament has the right and the power to control the Executive, to withhold confidence in it, to refuse to grant the financial resources required to carry out its decisions, and thus to deprive the Government's foreign policy of efficacy. Hence the Government must be certain that its foreign policy has the support of Parliament. The affairs which the Crown conducts comprise the whole catalogue of relations with foreign nations which includes the declaration of war and peace, of belligerency and neutrality, and the recognition of foreign States and of their extinction. The law can control the conduct of foreign affairs if and in so far as the prerogative has been superseded by legislation, but even where this has happened there usually remains a residue of prerogative power vested in the Executive.

Sovereignty

2012 ◽  
Author(s):  
Michel Troper
Keyword(s):  
Constitutional Law ◽  
Legal Discourse ◽  
The State ◽  
Constitutional Theory ◽  
General Description ◽  
Absolute Power ◽  
Empirical Fact ◽  
The Law

The idea that the state possesses and exercises a supreme and absolute power is central to constitutional law. It is almost impossible for anyone writing in the field to avoid discussing it, even if in some cases the discussion leads to denying that it is a meaningful concept. This article discusses the external and internal sovereignty of the state and sovereignty in the state. It argues that the question whether the theory of sovereignty is valid must be answered in the affirmative for two different reasons, both connected to fundamental conceptions of constitutional theory. First, we can see the task of constitutional theory as a general description of positive constitutional law. Constitutional theory also describes the law through an analysis of legal discourse and it is an empirical fact that actors use the language of sovereignty.

scholarly journals A Reply to Grotius’s Critics. On Constitutional Law

Grotiana ◽  
2018 ◽  
Vol 39 (1) ◽  
pp. 77-95
Author(s):  
Gustaaf van Nifterik
Keyword(s):  
Constitutional Law ◽  
Constitutional Theory ◽  
War And Peace ◽  
Law Of War ◽  
The Law

It is not always easy to interpret Grotius’s constitutional theory that lies hidden within his book on the law of war and peace. After a very concise discussion of this constitutional framework, this study turns to various interpretations and conclusions by contemporary scholars that sit awkwardly within the theory. The interpretations of Richard Tuck, Peter Borschberg, Knud Haakonson, Frank Grunert, Deborah Baumgold, Marco Barducci, Daniel Lee and Gustaaf van Nifterik are discussed critically.

scholarly journals Purpose, tasks and functions of constitutional and legal responsibility: questions of efficiency of realization

2020 ◽  
pp. 104-109
Author(s):  
Nataliia Batanova
Keyword(s):  
Constitutional Law ◽  
The State ◽  
Legal Responsibility ◽  
Constitutional Theory ◽  
Legal Personality ◽  
Correct Definition ◽  
Concept Of Function ◽  
The One ◽  
Holistic Theory ◽  
Definition Of

In the article some problems of the theory of functions of constitutional and legal responsibility are researched. The relationshipbetween the goals, objectives and functions of constitutional legal responsibility, the functions of the Constitution, the functions of constitutionallaw, the functions of the state and the like is substantiated.Exploring the problems of constitutional and legal responsibility, it is necessary to proceed from a methodological position onunderstanding the functions of legal responsibility in general and the functions of constitutional and legal responsibility in particular,as an active way of constitutional and legal responsibility, directions and forms of its impact on public relationship, the content of thistype of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution andthe constitutional order.Equally important in creating a holistic theory of the functions of constitutional responsibility is the consideration and relationshipof the category “function of constitutional responsibility” and phenomena such as “objectives of constitutional responsibility”,“tasks of constitutional and legal responsibility” and “principles of constitutional and legal responsibility”. Certain theoretical differencesin the definition of these essentially different and, at the same time, interconnected categories give rise to significant contradictionsand conflicts in constitutional theory and legislative practice. They can be overcome only by creating a holistic system of conceptsin which the concept of “function of constitutional and legal responsibility” will occupy a clearly defined place.It is concluded that the concept of “functions of constitutional and legal responsibility”, on the one hand, and the concept of“functions of the Constitution”, “functions of constitutional law”, “functions of the state”, “functions of subjects of constitutional law”,on the other hand, are mutually related. Consequently, this issue of scientific research is relevant and practically significant both interms of the theory of constitutional law and its institutions, primarily the theory of constitutional and legal responsibility, and theapplied aspect, primarily in the context of formation and implementation of legal personality of subjects in constitutional and legal relationship,first of all, bodies and officials of state power and local self-government.It is argued that its functionality and effectiveness depend on the correct definition of the goals and objectives of constitutionalresponsibility.

scholarly journals REORIENTASI LGBT DI INDONESIA (STUDI FIQH AL-HADITS)

2017 ◽  
Vol 16 (1) ◽  
pp. 1
Author(s):  
Mahdalena Nasrun
Keyword(s):  
Criminal Code ◽  
The State ◽  
Legal Research ◽  
The Law ◽  
The One ◽  
The Right

Liberal NGOs such as Ardhanary Institute, Gaya Nusantara and Arus Pelangi devoted their bodyfor LGBT with a statement “my body is mine, not the one who has the right to govern my body, notthe parents, the state, and even the religion”. This movement is disturbing the community. Theresearch question of the study was how did LGBT exist in Indonesia? And how does fiqh al hadithview about LGBT. This study used normative legal research. The result of this study revealed that theexistence of LGBT in Indonesia in its history. Prohibition and punishment have been explained inthe book of Tuhfah al Ahwaz , the fatawa of MUI (Indonesian Council of Ulama) (1974, 2014)in line with the criminal code article 292 homosexsual acts, article 4 point 1a of the law onpornography and contradictory to article 1 of law № 1 of 1974 about marriage.

Filippov solutions of vector Dirichlet problems

2020 ◽  
Vol 70 (2) ◽  
pp. 401-416
Author(s):  
Hana Machů
Keyword(s):  
Differential Equations ◽  
The State ◽  
State Variables ◽  
Dirichlet Problems ◽  
Filippov Solutions ◽  
Natural Notion ◽  
Growth Restrictions ◽  
The One ◽  
The Right ◽  
Effective Growth

Abstract If in the right-hand sides of given differential equations occur discontinuities in the state variables, then the natural notion of a solution is the one in the sense of Filippov. In our paper, we will consider this type of solutions for vector Dirichlet problems. The obtained theorems deal with the existence and localization of Filippov solutions, under effective growth restrictions. Two illustrative examples are supplied.

The State Policy towards the Homeless in Moldova between the ‘Left Hand’ and the ‘Right Hand’. The Case of Chișinău Shelter

Südosteuropa ◽  
2019 ◽  
Vol 67 (2) ◽  
pp. 175-195
Author(s):  
Petru Negură
Keyword(s):  
Homeless People ◽  
Severe Disabilities ◽  
The State ◽  
Small Scale ◽  
Left Hand ◽  
Right Hand ◽  
Binary Approach ◽  
The One ◽  
The Right ◽  
Depth Interviews

Abstract The Centre for the Homeless in Chișinău embodies on a small scale the recent evolution of state policies towards the homeless in Moldova (a post-Soviet state). This institution applies the binary approach of the state, namely the ‘left hand’ and the ‘right hand’, towards marginalised people. On the one hand, the institution provides accommodation, food, and primary social, legal assistance and medical care. On the other hand, the Shelter personnel impose a series of disciplinary constraints over the users. The Shelter also operates a differentiation of the users according to two categories: the ‘recoverable’ and those deemed ‘irrecoverable’ (persons with severe disabilities, people with addictions). The personnel representing the ‘left hand’ (or ‘soft-line’) regularly negotiate with the employees representing the ‘right hand’ (‘hard-line’) of the institution to promote a milder and a more humanistic approach towards the users. This article relies on multi-method research including descriptive statistical analysis with biographical records of 810 subjects, a thematic analysis of in-depth interviews with homeless people (N = 65), people at risk of homelessness (N = 5), professionals (N = 20) and one ethnography of the Shelter.

Beyond stateless democracy

2015 ◽  
Vol 36 (1) ◽  
pp. 21-41
Author(s):  
William J. Novak ◽  
Stephen W. Sawyer ◽  
James T. Sparrow
Keyword(s):  
Common Good ◽  
John Locke ◽  
The State ◽  
Direct Response ◽  
Classical Liberal ◽  
Liberal Conception ◽  
Neutral Site ◽  
The Common ◽  
The One ◽  
Definition Of

Pierre Bourdieu began his posthumously published lectures “On the State” by highlighting the three dominant traditions that have framed most thinking about the state in Western social science and modern social theory. On the one hand, he highlighted what he termed the “initial definition” of the state as a “neutral site” designed to regulate conflict and “serve the common good.” Bourdieu traced this essentially classical liberal conception of the state back to the pioneering political treatises of Thomas Hobbes and John Locke.1 In direct response to this “optimistic functionalism,” Bourdieu noted the rise of a critical and more “pessimistic” alternative—something of a diametric opposite.

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