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.

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.

Sources and the Legality and Validity of International Law

2018 ◽  
Author(s):  
Mary Ellen O’Connell ◽  
Caleb Day
Keyword(s):  
International Law ◽  
Natural Law ◽  
Ancient Greece ◽  
Global Community ◽  
Positive Law ◽  
History Of

This chapter posits that international law, like all law, can be understood as a hybrid of positive and natural law. The history of natural law from Ancient Greece to today’s global community reveals that the method used for centuries to explain extra-positive features of law consists of three integral elements. The method uses reason, reflection on nature, and openness to transcendence. Certain contemporary natural law theorists, however, prefer to focus on reason and nature alone. Yet, the history of natural law thinking shows that transcendence is integral to the method. History also reveals that religion is not the only avenue to transcendence. Transcendence completes a natural law method capable of explaining persuasively why law binds in general and why certain principles are superior to positive law.

scholarly journals Long Lexical Bundles and Standardisation in Historical Legal Texts

2012 ◽  
Vol 47 (2-3) ◽  
pp. 3-25 ◽  
Author(s):  
Joanna Kopaczyk
Keyword(s):  
Sixteenth Century ◽  
Legal Discourse ◽  
Considerable Degree ◽  
Lexical Bundles ◽  
Research Results ◽  
Legal Texts ◽  
Fixed Expressions ◽  
And Function ◽  
Unchanged Form

Abstract Standardisation on the level of text is visible in the employment of stable and fixed expressions for a specific textual purpose. When gauging the extent of standardisation in texts, one of the parameters which should be taken into consideration is the length of such stable patterns. Since it is more difficult, and therefore rarer, to reproduce long chunks of text in an unchanged form, such a practice points towards greater standardisation. To explore the textual behaviour of long fixed strings in legal texts, this paper concentrates on long lexical bundles built out of eight consecutive elements (8-grams) and their frequency and function in historical legal texts. The database for this pilot paper comprises two collections of legal and administrative texts written in Scots between the fourteenth and the sixteenth century. The research results point to a considerable degree of textual standardisation throughout the corpus and to the most prominent functions of long repetitive chunks in historical legal discourse.

scholarly journals “A Comunidade Internacional e o Direito”/"The International Community and the Right"

2016 ◽  
Vol 5 (1) ◽  
pp. 246-262
Author(s):  
Norberto Bobbio
Keyword(s):  
International Law ◽  
Natural Law ◽  
Critical Review ◽  
International Community ◽  
Philosophy Of Law ◽  
Positive Law ◽  
The Right ◽  
Peace And War

Resumo: O texto consiste numa ampla resenha crítica escrita pelo filósofo italiano Norberto Bobbio sobre o livro La comunità internazionale e il diritto [A comunidade internacional e o direito] (1950) de Mario Giuliano, na qual são discutidas essencialmente questões clássicas da filosofia do direito internacional, como a contraposição entre jusnaturalismo e juspositivismo, a natureza do direito internacional, a contraposição entre internacionalismo e cosmopolitismo, a reforma do direito internacional, a reforma da comunidade internacional, os temas da paz e da guerra, a cientificidade do direito internacional, a contraposição entre direito internacional e direito estatual e o tema do pacifismo. Palavras-chave: Mario Giuliano, direito internacional, comunidade internacional, internacionalismo, pacifismo. Abstract: This paper is a comprehensive critical review written by the Italian philosopher Norberto Bobbio on the book La comunità internazionale e il diritto [The international community and the right] (1950) by Mario Giuliano, which are discussed essentially classical questions of philosophy of law international, as the opposition between natural law and positive law, the nature of international law, the opposition between internationalism and cosmopolitanism, the reform of international law, the reform of the international community, the issues of peace and war, the scientificity of international law, opposition between international law and estatual rights and the issue of pacifism.Keywords: Mario Giuliano, international law, international community, internationalism, pacifism 

Law’s Nature: Philosophy as a Legal Argument in Cicero’s Writings

Cicero's Law ◽  
2016 ◽  
Author(s):  
Benedikt Forschner
Keyword(s):  
Natural Law ◽  
Legal Discourse ◽  
Roman Law ◽  
Legal Argument ◽  
Philosophical Concept ◽  
Positive Law ◽  
Legal Arguments ◽  
Theory Of Law ◽  
Holistic Theory ◽  
Forensic Speeches

The paper deals with the use of philosophical arguments in Cicero's legal writings, in particular his forensic speeches. It tries to demonstrate that Cicero developed a unique, holistic theory of law, which is not based on a juxtaposition of natural law and positive law, but tries to deduce the nature of law from the nature of men. Even though this theory probably did not influence the writings of the later classical jurists in a direct way, Roman law was open enough for philosophical arguments to allow Cicero to make use of this theory within the legal discourse. Using examples from Cicero's forensic speeches, the paper demonstrates how Cicero refers to his philosophical concept in order to develop specifically legal arguments.

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.

scholarly journals Ius Constitutionale Commune en América Latina: Observations on Transformative Constitutionalism

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 109-114 ◽  
Author(s):  
Armin von Bogdandy
Keyword(s):  
International Law ◽  
Separation Of Powers ◽  
Legal Discourse ◽  
Case Law ◽  
New Approach ◽  
Legal Scholarship ◽  
Positive Law ◽  
America Latina ◽  
Legal Concepts ◽  
Opening Up

A new approachIus Constitutionale Commune en América Latina (ICCAL) constitutes a new approach to constitutionalism in the region. It has transformative aims and draws its energy from the perception of unacceptable conditions of a systematic nature. Like many legal concepts it refers both to positive law as a well as to the legal discourse connected to it. In terms of positive law, it is above all based upon the American Convention on Human Rights and other inter-American legal instruments, the concordant guarantees of national constitutions, the constitutional clauses opening up the domestic legal order to international law as well as pertinent national and international case law. In terms of legal discourse it is characterized by a disciplinary combination of national and international legal scholarship, a comparative mindset, and a methodological orientation towards principles.The proponents of this approach set a stark accent on rights and the transformation of political and social realities but reject plebiscitary presidentialism and the centralization of power as a transformative strategy. Accordingly, the separation of powers and independent institutions are accorded great weight. ICCAL supports the regionally secured realization of the central promises of national constitutions, the embedding of the national legal orders in a larger context, and the transformation of society through law.

scholarly journals Lei, arquivo e acontecimento no Brasil escravista: sentidos de liberdade na Lei do Ventre Livre ( Law, archive and event in Slavery Brazil: meanigs of freedom in Free Born Law )

2011 ◽  
Vol 9 (2) ◽  
pp. 39
Author(s):  
Jorge Viana Santos ◽  
Mônica Zoppi-Fontana
Keyword(s):  
Legal Discourse ◽  
Theoretical Framework ◽  
Legal Text ◽  
Positive Law ◽  
Legal Texts

Neste artigo, por recorte metodológico, analisamos sentidos de liberdade que se materializam na Lei do Ventre Livre, enquanto acontecimento discursivo, relacionado ao arquivo de leis abolicionistas/emancipacionistas brasileiras, a qual revela a positivação dos costumes: uma forma de imbricação de dois direitos: Consuetudinário e Positivo. Consideramos especificamente casos de rupturas instauradas por essa lei. Como aporte teórico, seguimos Zoppi-Fontana (2002, 2005) que, fazendo uso da noção de arquivo, postulada por Pêcheux (1982, p. 57), memória e acontecimento para a análise de textos legais, considera a materialidade da língua (sistema sintático) na discursividade (inscrição de efeitos linguísticos materiais na história) do arquivo.PALAVRAS-CHAVE:Discurso Jurídico. Semântica. Escravidão. Lei do Ventre Livre. ABSTRACT This paper analyses meaning of freedom in the Brazilian Free Born Law (Lei do Ventre Livre), as discursive event, related to the archive of brazilian abolitionist laws. We postulate that this Law reveals a imbrincation of Positive Law and Consuetudinary Law. So, we analise specifically ruptures in that legal text. As theoretical framework, we base on Zoppi-Fontana (2002, 2005), who uses notions of archive, by Pe?cheux (1982, p. 57), memory and event, for investigation of legal texts, taking into account the language materiality (sintactic system) inscribed in the discursiveness of the archive.KEYWORDS: Legal Discourse. Semantics. Slavery. Free Born Law.

scholarly journals A Christian View of Humanitarian Intervention

2019 ◽  
Vol 33 (1) ◽  
pp. 19-28
Author(s):  
Nigel Biggar
Keyword(s):  
International Law ◽  
Natural Law ◽  
Social Order ◽  
Humanitarian Intervention ◽  
National Interests ◽  
Legal Norms ◽  
Positive Law ◽  
Christian View ◽  
Self Interest ◽  
Legitimate Interests

AbstractAs part of a roundtable on “Balancing Legal Norms, Moral Values, and National Interests,” this essay presents a Christian view of how to think coherently about the relationships between those three elements. Christian monotheism entails the view that there is a given moral order or “natural law,” which comprises basic human goods (or universally objective values) and moral rules for defending and promoting them. This natural law precedes all human, positive law. It follows that, while the authority of positive international law is important for the maintenance of the good of social order, it is still penultimate, since it can be trumped by natural law. Moreover, international law's authority is weaker than that of national law, because controversy over its sources gives greater scope for the interpreter's moral and political prejudices to shape its construal. Since the interpretation of international law is subject to diverse construals, occasions arise when its authority is invoked to shield the perpetration of grave injustice. In such circumstances, an appeal to natural law could supply moral justification for humanitarian military intervention, even when it violates the letter of international law. Humanitarian intervention, however, is often criticized for being motivated by national interests. A Christian view that follows Thomas Aquinas, however, does not regard national interests as immoral per se, but recognizes that self-interest can be legitimate, and that a national government has a moral responsibility to promote the legitimate interests of its people.

Cardinal Richelieu between Vattel and Machiavelli

2018 ◽  
Author(s):  
Anthony Carty
Keyword(s):  
Seventeenth Century ◽  
International Law ◽  
Rule Of Law ◽  
Natural Law ◽  
Historical Research ◽  
Practical Implementation ◽  
The Rule Of Law ◽  
God's Will ◽  
Legal Thought ◽  
Rule Of Reason

The view that no form of international law existed in seventeenth-century France, and that this time was a part of ‘prehistory’, and thus irrelevant for international legal thought today is challenged. In addition, the traditional claim of Richelieu to be an admirer of Machiavelli and his Ragion di Stato doctrine to the detriment of the aim of concluding treaties and keeping them (as sacred), is refuted by careful historical research. In Richelieu’s thinking, there is a role for law to play but it is law as justice, law in the classical natural law tradition. Those who rule are subject to the rule of law as justice, the rule of God, or the rule of reason. In Richelieu’s world, kings and ministers are rational instruments of the practical implementation of God’s will on earth.

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