Benjamin Straumann, Roman Law in the State of Nature. The Classical Foundations of Hugo Grotius’ Natural Law. Transl. by Belinda Cooper. Cambridge, Cambridge University Press 2015

2016 ◽  
Vol 303 (1) ◽  
Author(s):  
Michael Stolleis
Grotiana ◽  
2010 ◽  
Vol 31 (1) ◽  
pp. 22-43 ◽  
Author(s):  
Benjamin Straumann ◽  
Benedict Kingsbury

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).


Grotiana ◽  
2015 ◽  
Vol 36 (1) ◽  
pp. 63-77 ◽  
Author(s):  
Alejandra Mancilla

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.


Author(s):  
David Ibbetson

Natural law thinking in the early modern world had two principal roots: Greco-Roman moral philosophy and Roman law. These two strands came together in sixteenth-century Spain, from where they influenced the Dutchman Hugo Grotius. Grotius can be seen as the channel through which this thinking reached a pan-European audience. His works, and the works of his followers, came to have an enormous influence on the development of legal thought and practice after the seventeenth century. Ideas of natural law were no longer regarded as dependent on God’s will. A rational structure could be derived from self-evident premises in the law of nature and identification of concrete rules of natural law was regarded as the work of human reason. These features, coupled with its seeming moral objectivity, allowed natural law to provide a template for positive legal systems, and fuelled the move towards codification of law in eighteenth-century Europe.


2021 ◽  
pp. 321-323
Author(s):  
Martin Wight

In Wight’s view, ‘Perhaps the most interesting thing about this book is that it does not mention Morgenthau’s colleague at Chicago, Leo Strauss [ … ] Agreed in their concern about the retreat of political science into “the trivial, the formal, the methodological, the purely theoretical, the remotely historical”, they are divided by the gulf of natural law.’ Morgenthau asserted, however, that Wight in his review had made ‘a factual error’. Morgenthau quoted another one of his books, In Defense of the National Interest: ‘There is a profound and neglected truth hidden in Hobbes’s extreme dictum that the state creates morality as well as law and that there is neither morality nor law outside the state. Universal moral principles, such as justice or equality, are capable of guiding political action only to the extent that they have been given concrete content and have been related to political situations by society.’ Morgenthau wrote in criticism of Wight’s review: ‘To say that a truth is “hidden” in an “extreme” dictum can hardly be called an endorsement of the dictum. To call a position “extreme” is not to identify oneself with the position but to disassociate oneself from it. In the quoted passage I was trying to establish the point, in contrast to Hobbes’s, that moral principles are universal and, hence, are not created by the state.’ Wight replied: ‘I am sorry to have misinterpreted Professor Morgenthau, but I rejoice that my error has evoked an authoritative exegesis of a disputed passage.’


2018 ◽  
Vol 46 (4) ◽  
pp. 560-585
Author(s):  
Sinja Graf

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.”


1978 ◽  
Vol 26 (1) ◽  
pp. 78-90 ◽  
Author(s):  
John Anglim

John Locke's Two Treatises use the ‘state of nature’ to refer (1) to a core condition in which human persons lack an authoritative, common, human superior, (2) which is the original condition of all human peoples, but which (3) became such an inconvenience for some peoples as their social and economic life develops that they leave it by forming government, but which (4) remains as the condition of some peoples, Locke thought, in his own day, and (5) is a constant potential and actual feature of all human communities in respect of the possibility of tyranny, or absolute monarchy, or revolution, or withdrawal. Closely examining the Treatises suggests that obeying the natural law leads human persons and their communities to pass from usage 2 to usage 3.


Author(s):  
Sinja Graf

Chapter 2 analyzes Locke’s notion of a “trespass against the whole species” in the Second Treatise of Government. It reconstructs his argument for private property and political government through the lens of universal crime in a colonial context. Once humanity is stipulated as the earth’s stakeholder in the state of nature, the failure to enclose land via labor wastes the earth’s potential and instantiates an offense against mankind. Presenting the figure of the Native American as the quintessential universal criminal failing to perform agricultural labor as a dictate of natural law, Locke’s argument reveals an inclusionary Eurocentrism that includes non-European peoples insofar as they violate humanity’s supposedly universal norms. Furthermore, once the introduction of money enables accumulation without spoilage, those wasting the earth’s productivity become scarcely recognizable as universal criminals, and humanity as the natural law’s subject becomes destabilized. Founding separate peoples under sovereign government hence becomes necessary to recreate law-governed collective life.


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