What we own Before Property: Hugo Grotius and the Suum

Grotiana ◽  
2015 ◽  
Vol 36 (1) ◽  
pp. 63-77 ◽  
Author(s):  
Alejandra Mancilla
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Property Rights ◽  
Natural Law ◽  
The State ◽  
Current Discussion ◽  
State Of Nature ◽  
Modern Natural ◽  
Hugo Grotius ◽  
Scholarly Attention

At the basis of modern natural law theories, the concept of the suum, i.e. what belongs to the person (in Latin, his, her, its, their own), has received little scholarly attention despite its importance both in explaining and justifying not only the genealogy of property, but also that of morality and war. In this essay I focus on Grotius’s account of the suum and examine what it is, what things it includes, what rights it gives rise to, and how it is extended in the transition from the state of nature to civil society. I then briefly suggest that reviving this concept could help to illuminate the current discussion on the foundations of basic human rights, and to re-evaluate cases where these seem to clash with property rights.

The State of Nature and Commercial Sociability in Early Modern International Legal Thought

Grotiana ◽  
2010 ◽  
Vol 31 (1) ◽  
pp. 22-43 ◽  
Author(s):  
Benjamin Straumann ◽  
Benedict Kingsbury
Keyword(s):  
Sixteenth Century ◽  
Early Modern ◽  
Natural Law ◽  
David Hume ◽  
Adam Smith ◽  
The State ◽  
Legal Tradition ◽  
State Of Nature ◽  
Hugo Grotius ◽  
International Legal Order

AbstractAt the same time as the modern idea of the state was taking shape, Hugo Grotius (1583-1645), Thomas Hobbes (1588-1679) and Samuel Pufendorf (1632-94) formulated three distinctive foundational approaches to international order and law beyond the state. They differed in their views of obligation in the state of nature (where ex hypothesi there was no state), in the extent to which they regarded these sovereign states as analogous to individuals in the state of nature, and in the effects they attributed to commerce as a driver of sociability and of norm-structured interactions not dependent on an overarching state. Each built on shared Roman and sixteenth-century foundations (section I). Section II argues: 1) that Grotius's natural law was not simply an anti-skeptical construction based on self-preservation (pace Richard Tuck), but continued a Roman legal tradition; 2) that Hobbes's account of natural law beyond the state was essentially prudential, not moral (pace Noel Malcolm); and 3) that commerce as a driver of social and moral order (Istvan Hont's interpretation of Pufendorf and Adam Smith) had a substantial and under-appreciated impact on international legal order. Each contributed to the thought of later writers (section III) such as Emer de Vattel (1714-67), David Hume (1711-76), and Adam Smith (1723-90), and eventually to the empirical legal methodologies of Jeremy Bentham (1748-1832) and Georg Friedrich von Martens (1756-1821).

Implications

2017 ◽  
Author(s):  
Karl Widerquist ◽  
Grant S. McCall
Keyword(s):  
Property Rights ◽  
The State ◽  
Natural Property ◽  
Government Failure ◽  
State Of Nature ◽  
Best Response ◽  
Lockean Proviso ◽  
Definition Of ◽  
Taking Action ◽  
Disadvantaged People

Earlier chapters of this book found that the Hobbesian hypothesis is false; the Lockean proviso is unfulfilled; contemporary states and property rights systems fail to meet the standard that social contract and natural property rights theories require for their justification. This chapter assesses the implications of those findings for the two theories. Section 1 argues that, whether contractarians accept or reject these findings, they need to clarify their argument to remove equivocation. Section 2 invites efforts to refute this book’s empirical findings. Section 3 discusses a response open only to property rights theorists: concede this book’s empirical findings and blame government failure. Section 4 considers the argument that this book misidentifies the state of nature. Section 5 considers a “bracketing strategy,” which admits that observed stateless societies fit the definition of the state of nature, but argues that they are not the relevant forms of statelessness today. Section 6 discusses the implications of accepting both the truth and relevance of the book’s findings, concluding that the best response is to fulfil the Lockean proviso by taking action to improve the lives of disadvantaged people.

scholarly journals Advocacy as a tool for the realization of the fundamental right of a person to professional legal assistance

2021 ◽  
Vol 66 ◽  
pp. 240-243
Author(s):  
P. Badzeliuk
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Legal Status ◽  
Legal Profession ◽  
The State ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Legal Assistance ◽  
The Right ◽  
Legal Entities

This article is devoted to the study of the implementation of the fundamental right of a person to professional legal assistance through the vectors of influence of the bar, the role of the human rights institution in the mechanism of such a right and its place in public life.An effective justice system provides not only an independent and impartial judiciary, but also an independent legal profession. Lawyers play an important role in ensuring access to justice. They facilitate the interaction between individuals and legal entities and the judiciary by providing legal advice to their clients and presenting them to the courts. Without the assistance of a lawyer, the right to a fair trial and the right to an effective remedy would be irrevocably violated.Thus, the bar in the mechanism of protection of human and civil rights and freedoms is one of the means of self-limitation of state power through the creation and active functioning of an independent human rights institution, which is an active subject in the process of fundamental rights. The main constitutional function of the state is to implement and protect the rights and freedoms of man and citizen, and the constitutional and legal status of the legal profession allows it to actively ensure the rights of civil society as a whole and not just the individual. Effectively implement the human rights function of the state by ensuring proper interaction between the authorities and civil society, while being an active participant in the law enforcement mechanism and occupying an independent place in the justice system.Thus, the activities of lawyers are a complex manifestation of both state and public interest. After all, it is through advocacy and thanks to it that the rule of law realizes the possibility of ensuring the rights and freedoms of its citizens. Advocacy, on the one hand, has a constitutionally defined state character, and on the other hand, lawyers should be as independent as possible from the state in order to effectively protect citizens and legal entities from administrative arbitrariness. Thus, the bar is a unique legal phenomenon that performs a state (public-law) function, while remaining an independent, non-governmental self-governing institution.

“Put Yourself in Her Shoes”

2017 ◽  
Author(s):  
Jennifer N. Fish
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Domestic Workers ◽  
The State ◽  
Cross Sectional ◽  
Government Influence ◽  
Opening Up

This chapter looks at the role of NGOs, global and national unions, and feminist government leaders in the movement to support domestic workers’ global rights. Here, the merger of civil society activism, labor struggles, and government influence reveals how a cross-sectional range of players served in pivotal roles as allies in the determination of policy protections. Relations between domestic workers and the state are analyzed to show the potential for opening up new spaces of worker activism. The discussion of feminist government leaders, or femocrats, reveals how the unexpected alliance of women in positions of power and women in some of the world’s most marginalized positions resulted in a synergy that shook a staid, bureaucratic institution to its core, and enabled its reorientation to more effectively address issues of global human rights.

“A Trespass against the Whole Species”: Universal Crime and Sovereign Founding in John Locke’s Second Treatise of Government

2018 ◽  
Vol 46 (4) ◽  
pp. 560-585
Author(s):  
Sinja Graf
Keyword(s):  
Natural Law ◽  
Private Property ◽  
Normative Theory ◽  
The State ◽  
The Self ◽  
The Political ◽  
State Of Nature ◽  
The Subject ◽  
The Creation

This essay theorizes how the enforcement of universal norms contributes to the solidification of sovereign rule. It does so by analyzing John Locke’s argument for the founding of the commonwealth as it emerges from his notion of universal crime in the Second Treatise of Government. Previous studies of punishment in the state of nature have not accounted for Locke’s notion of universal crime which pivots on the role of mankind as the subject of natural law. I argue that the dilemmas specific to enforcing the natural law against “trespasses against the whole species” drive the founding of sovereign government. Reconstructing Locke’s argument on private property in light of universal criminality, the essay shows how the introduction of money in the state of nature destabilizes the normative relationship between the self and humanity. Accordingly, the failures of enforcing the natural law require the partitioning of mankind into separate peoples under distinct sovereign governments. This analysis theorizes the creation of sovereign rule as part of the political productivity of Locke’s notion of universal crime and reflects on an explicitly political, rather than normative, theory of “humanity.”

scholarly journals Three Grotian Theories of Humanitarian Intervention

2015 ◽  
Vol 16 (2) ◽  
Author(s):  
Evan J. Criddle
Keyword(s):  
Human Rights ◽  
International Law ◽  
Natural Law ◽  
Humanitarian Intervention ◽  
First Century ◽  
Responsibility To Protect ◽  
Self Defense ◽  
The People ◽  
Hugo Grotius ◽  
Law Of Nations

AbstractThis Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their natural law underpinnings and concerns about how they have facilitated Western colonialism. As an alternative, this Article outlines a third theory that builds upon Grotius’s account of humanitarian intervention as a fiduciary relationship, while updating Grotius’s account for the twenty-first century. According to this new fiduciary theory, when states intervene to protect human rights abroad they exercise an oppressed people’s right of self-defense on their behalf and may use force solely for the people’s benefit. As fiduciaries, intervening states bear obligations to consult with and honor the preferences of the people they seek to protect, and they must respect international human rights governing the use of force within the affected state. By clarifying the respective responsibilities of the Security Council and individual states for humanitarian intervention, the fiduciary theory also lends greater coherency to the international community’s “responsibility to protect” human rights.

Sign in / Sign up

Export Citation Format

Share Document